KALI CHARAN NANDY Vs. DEBENDRA NATH KAR

JUDGEMENT

(1.) WE are invited in this Rule to sot aside an older made by the Subordinate Judge in the Court below, for postponement of a sale in execution of a mortgage decree till the 15 March 1910. It appears that the decree nisi was made on the mortgage on the 17 December 1907. On the. 7 August, 1908, the mortgagee made an application in which he prayed that the order absolute might be made under Section 89 of the Transfer of Property Act and further that the mortgaged properties might be brought to sale. On the 22 August, 1908, the order absolute was passed, and two days later, the properties were directed to be sold on the 17th November. Shortly after this, a common manager appears to have been appointed, in respect of the estate of the mortgagors, under the Bengal Tenancy Act, and on the 18 June 1909 the learned District Judge addressed a letter to the Subordinate Judge, in whose Court execution proceedings were pending, requesting that the sale might be postponed till February 1910. It was stated in this letter that arrangements were in progress for the sale of a portion of the estate, mouzah by mouzah, for satisfaction of the debts due to different creditors and that execution sales in the interval might bring the estate to ruin and prevent all the creditors from getting their dues. On the 21 June, the Subordinate Judge recorded the following order: "Received District Judge's letter No. 151, dated the 18 instant for postponement of sales of all Kar estates (of which the property advertised in this case is one) till the end of February next. The sale is, therefore, postponed to 15 March next. Issue fresh proclamation. Decree- holder to pay costs." WE are now invited to set aside this order on the ground that it was irregularly made. In answer, it has been suggested by the learned Vakil who appears to show cause that the proceedings were throughout irregular, inasmuch as a date had been fixed for. the sale of the mortgaged properties without any application by the decree-holder for execution of his decree. There is no substance, however, in this contention. As we have already stated, the application of the 7 August, 1908, was for a two-fold purpose. It invited the Court to make the order absolute and also to direct the sale of the mortgaged properties. This, in our opinion, was sufficient compliance with the requirements of Section 89 of the Transfer of Property Act, which was at the time in force. As to the order for postponement of the sale, no attempt has been made to support it. The execution proceeding pending before the Subordinate Judge was a judicial proceeding, and if the judgment-debtor desired that the impending sale should be postponed, a proper application ought to have been presented to the Court in due course. The Subordinate Judge ought not to have taken any action upon a letter received from the District Judge. He could proceed only on the basis of an application regularly made, and, if he thought that any indulgence ought to be granted to the judgment-debtor, the order should have been made on terms, and care should have been taken to protect the decree-holder from any loss likely to result from the delay, and to award him. any costs that he might have already incurred or would have to incur by reason of the postponement.

(2.) THE result, therefore, is that this Rule must he made absolute and the order of the 21st June discharged. We do not, however, desire to hamper in any way the exercise of judicial discretion by the Subordinate Judge, should an application be presented to him for postponement of the execution sale. If such an application is presented, he will have to deal with it under Section 47 of the Code of 1908 read with Order 21 Rules 26 and 69, upon the facts which may be judicially brought to his notice. We make no order as to costs. Let the record be sent down at once.