HARGU LAL AND PAHLADI LAL Vs. PURSHOTTAM SARAN

JUDGEMENT

(1.) THIS is an application for leave to appeal to His Majesty in Council from an order of this Court dismissing an appeal preferred by the applicant under the following circumstances. A decree was passed upon a mortgage for the sale of the mortgaged property. The present applicant is the purchaser of a part of that property. He preferred objections to the execution of the decree, but those objections were overruled by the Subordinate Judge and he ordered the mortgaged property to be sold in pursuance of the decree. The 20 of September, 1920, was fixed for the sale. On the 19 of that month an application was made to this Court to stay the sale. At that time no appeal from the decision of the court below in regard to the objections preferred by the present applicant had been filed. It was during the long vacation of this Court, when ordinarily appeals are not received, that the application was made to the court below to set aside the sale. That application for stay of sale was made. The learned Judge who was the vacation Judge made an ad interim order for stay of sale, he having been informed that an appeal would be presented upon the re-opening of the Court. An appeal was as a matter of fact subsequently presented. But it was dismissed. Meanwhile, the property was sold, and an application having been refused by the Subordinate Judge, an appeal was preferred to this Court and it was contended that as this Court had already ordered the sale to be postponed, the court below ought not to have allowed the sale to take place and the sale was a nullity. The learned Judges who hoard the appeal dismissed it on the ground that the order for stay of sale made by the vacation Judge was an order which he had no jurisdiction to pass. It is from this decision of a Divisional Bench of this Court (1) that the applicant seeks to appeal to His Majesty in Council. In order to justify our granting him the certificate which he asks for, we must le Satisfied that a substantial question of law is involved in the case. There is no doubt that a question of law is involved, but that question must be a substantial question of law and a question about which there may be a difference of opinion. We do not think that in the present instance there can be any doubt that an appellate court cannot order stay of sale unless it has seisin of the case in which the sale was ordered to take place. THIS is obvious from the terms of Order XLI, Rule 5. When the vacation Judge made his order no appeal had been preferred. It was an urgent matter, and if the present applicant intended to appeal and to have the sale, which was to take place the following day, stayed, he ought to have obtained the leave of the vacation Judge to present the appeal as an emergent matter and then file his application for stay of sale. We think the learned Judges of this Court have rightly held that the order of the vacation Judge was ultra vires and therefore the sale was not a nullity. We dismiss the application with costs. Two sets of costs will be allowed, one to the decree-holder and the other to the auction-purchaser.