SAHU NAND KISHORE Vs. LALA SHADI RAM

JUDGEMENT

(1.) This is an appeal by the judgment-debtor from an order refusing to set aside a sale, held in execution of a decree, and the questions for consideration are, whether the sale officer had any jurisdiction to proceed with the sale after an order for stay had been passed by this Court in an appeal pending from the decree, then under execution, and, whether there had been any material irregularity in publishing or conducting the sale and had any material injury resulted therefrom.

(2.) In execution of a certain decree, from which an appeal is pending in this Court, the villages of Miranpur and Shekhupur Chuhar were directed to be sold; and the sale officer had fixed the 20 June 1923 for their sale by auction at Bijnor. On the 18 June 1923 an order for stay was passed by this Court; and a copy of it was sent by post to the Subordinate Judge of Bijnor, sitting at Moradabad. The Subordinate Judge or his office is stated to have received that order on the 20 June 1923 at 1 P.M.; and a telegram was immediately sent to the sale officer at Bijnor to postpone the sale in pursuance,, of that order. But before the telegram could reach the sale officer, the sale had been completed and one of the villages described by the decree-holder as worth Rs. 20,000 in execution proceeding was purchased by the decree-holder himself for Rs. 25,500, and the other, similarly described by the decree-holder as worth Rs. 8,000 was purchased by certain other persons for Rs. 13,400. 2. The allegation of the judgment-debtor was that the sale was irregular and illegal inasmuch as no proclamation of sale had been actually affixed in the villages in question, and the properties were sold in spite of the order for stay issued by this Court; and it was further alleged that material injury had resulted to the judgment-debtor in consequence. The Court below found that there was no material irregularity in conducting or publishing the sale, that the sale was held in ignorance of the order for stay, and that no material injury had in any case been caused to the judgment-debtor.

(3.) A Court has jurisdiction to proceed with the sale of the property directed to be sold so long as no order for stay of the same has been passed by a superior Court having jurisdiction to suspend the execution proceeding. Order XLI, Rule 5 of the C.P.C. provides that an appeal shall not operate as stay of a proceeding under a decree or order appealed from, except so far as the Appellate Court may order " otherwise. It also empowers an Appellate Court to pass an ex parte order for stay of execution, pending the hearing of, the application. In Hukum Chand Boid v. Kamalanand Singh 33 C. 927 it was held that where an Appellate Court had made an unconditional order for the stay of execution, the operation of the order was not postponed until it was communicated to the subordinate Court or the party intended to be affected by it. The order becomes operative under Order XLI, Rule 5 the moment it is made and suspends the power of the subordinate Court to carry on further execution proceedings.