SUPERIOR BANK LIMITED Vs. BUDH SINGH

JUDGEMENT

(1.) Execution Second Appeal No. 682 of 1923 and Civil Revision No, 96 of 1923 have been connected and have been filed from the same order. The revision has been filed by way of a precaution in case it beheld that no, second appeal lies.

(2.) A mortgage decree was in execution and the 17 of August 1922 was fixed for sale of the properties mortgaged. A day before the sale, namely, on the, 16th of, August two of the judgment debtors put in an application that one of the houses should not be sold till the other two houses had been put up for sale and the decree had not been satisfied. This application was rejected on that very date by the Execution Court at Muzaffarnagar. That Court was subordinate to the Court of the District Judge at Meerut. On the 17 of August 1922 an appeal was preferred before the District Judge from, the order dismissing the judgment- debtors application and on the same date an application for stay of execution was also filed. On that date the learned District Judge passed an order in the following terms: "I order that the south faced compound be not sold provided the applicant guarantees to make up the amount outstanding to Rs. 1,640 odd if the sale of the other houses does not fetch that amount." An intimation by telegram was sent to the Court at Muzaffarnagar. The telegram was received by the Telegraph Office at. 1-25 p. m. and was sent to the Court which is at a distance of only a few minutes walk. The sale was conducted by the amin and was completed at 2 p.m. that afternoon. It is said by the learned Munsif in this case that the sale had been finished before the amin received the order postponing the sale and even before the learned Munsif passed such an order on receipt of the telegraphic communication by the Appellate Court. It is not clear, however, whether the Court had received the actual intimation of this stay order before 2 p m. though the learned District Judge is inclined to the view that the probability is that the Court at Muzaffarnagar must have received such intimation before the sale was actually completed. On receipt of this intimation the Court was not prepared to act on a mere telegram without a certified copy of the order. It accordingly merely postponed the sale for two days. The sale, as we have already remarked had taken place before this last order was passed by the Execution Court.

(3.) The appeal-before the District Judge was ultimately dismissed on the 29 of November 1922 and the stay order;, was automatically discharged.