SHYAMKISHEN Vs. SUNDAR KOER

JUDGEMENT

(1.) This is an appeal from an order of the Court below postponing the sale of the mortgaged properties and giving the judgment-debtor Rani Sundar Koer, time to have her property taken charge of by the Court, of Wards, so, that arrangements might be made for paying off the decree.

(2.) At the hearing of the appeal a preliminary objection was taken on behalf of the respondent, the order of the Court below, as it was an order under Secs.291 of the Code, Civil Procedure, and not under Section 244. If it was an order under Section 291 simply adjourning the sale, no appeal lay from it, as an order under Section 291 is not made appealable by Section 588. But then the learned vakil for the appellants contends, and we think rightly, that the case comes under Section 244 and that the order of the Court below was an order in effect, if not in terms, for stay of execution of the decree. The order in terms is no doubt an order for stay of sale, but as the decree is a mortgage decree directing the sale of the mortgaged property, and as, until the mortgaged properties are sold and found to be insufficient to satisfy the decree, no other proceeding in execution against the judgement- debtor can be taken, the stay of sale of the mortgaged property virtually amounted to stay of execution altogether; and that being so, the order should be taken to be one determining a question coming under Clause (e) of Section 244, and therefore being a decree within the meaning of Section 2 of the Code.

(3.) An appeal therefore lies against that order.