1. The question in this appeal is whether the sale through Court held in execution of the decree against the defendant-appellant, the judgment-debtor, is void. The plaintiff-respondent obtained against the judgment-debtor a decree for about Rs. 2,600. The decree-holder proceeded in execution. Execution was transferred to the Collector and the sale of immoveble property was fixed on March 28, 1925. On that day-the precise hour is not on record-the judgment-debtor-appellant deposited Rs. 300 in the Court of the Subordinate Judge who passed the decree and applied for stay and obtained it. But before this order of stay could be transmitted to the Mamlatdar in the same town who was holding the sale, the property was sold for Rs. 2,000. On April 6, 1925, the appellant applied to set aside the sale on the ground that, having obtained the stay, as he urged, before the sale actually took place, the sale was void. The auction-purchaser was not made a party to this application, The trial Court was unable to find whether the stay order was made before or after the sale, but as the sale was completed in any case, before the order for stay was communicated to the Mamlatdar, held that the sale was not, therefore, invalid, and rejected the application. This order was confirmed in appeal by the District Court on the ground that the appellant was not shown to have sustained substantial injury. The second appeal was dismissed and the judgment-debtor appeals under the Letters Patent.
2. A preliminary objection is taken for the respondent that no appeal lies. It is argued that the second application could only lie under Order XXI, Rule 89, of the Civil Procedure Code, and that under Section 104 only one appeal lay and no more. For the appellant it is contended that the present order fell under Section 47 and a second appeal lies on the merits. Reliance is placed for the appellant on the case of Hukum Chand Boid v. Kamalanand Singh I.L.R. (1905) Cal. 927: and for the respondent on the case of Venkatachalapati Rao v. Kameswaramma I.L.R. (1917) Mad. 151,
3. It is not clear to us under what Section the petitioner-appellant applied for, and the decreeing Court granted, a stay on March 28, 1925. Order XXI, Rule 26, is pressed into service for the appellant, but it applies in terms only in the case of a decree transferred for execution to another Court and does not apply to a ease such as the present. Moreover, it is, in our opinion, a correct argument for the respondent that the execution and sale having been transferred to the Collector under Section 68 of the Civil Procedure Code, such application to adjourn the sale lay to the Collector rather than to the decreeing Court. If so, the original application would not fall under Section 47 and no second appeal lies.
4. The question involved is, however, of some importance, as the Bench, which admitted the appeal; has pointed out. It appears to us that it is difficult to lay down a principle as to the moment of operativeness or otherwise of the order by an appellate Court and whether the operativeness of the order dates from the time it is signed or from the time it is communicated. We are indebted to the learned pleader for the appellant for inviting our attention to the recent Full Bench case of the Allahabad High Court, Parsotam Saran v. Barhma Nand (1927) 25 A.L.J. 530, f.b. It is difficult to evolve any definite principle from the decided cases. It appears to us that a great deal depends on the nature of the order, the question of good faith and other facts. If, for instance, an order of stay was obtained in time from a competent Court or authority, but was dishonestly delayed in transmission by the action of the decree-holder, the sale would hardly be confirmed. If, on the other hand, the order was obtained too late for transmission, the risk would be the judgment-debtor's and he would find it difficult to have the sale set aside. For the purposes of the present appeal, we are of opinion that under whatever rule the first application of March 28 was made, as regards the second application of April 6, 1925, after the sale it being in terms an application to set aside the sale, the auction purchaser was a necessary party, and the appellant could not dispense with his presence on the simple allegation that the purchase was benami for the decree-holder. It suffices to refer to Section 66 of the Civil Procedure Code. The appellant cannot invite the Court to set aside the sale in the absence of the auction purchaser, and on this ground alone the present appeal fails.
5. In regard to the question as to when the order operates, it is to be noticed that the difference of opinion depends to a considerable extent upon the nature of the order and the reason for the delay in its transmission. In the case of Hukum Chand Boid v. Kamalanand Singh I.L.R. (1905) Cal. 927 the question was of delivery of possession not to a third party such as an auction-purchaser but to the decree-holder, after an unconditional order of the appellate Court for stay of execution. On the other hand, in the case of Ramanathan v. Arunachellam I.L.R. (1913) Mad. 766, it appears that though the lower Court had itself no official information of the order of the appellate Court to stay the sale, it had been moved by the party who had obtained it on the ground that such an order was made, so that it could not be said that the Court was in entire ignorance of the order of the appellate Court, and the sale was, therefore, set aside. The facts in the Full Bench case of Venkatachalapati Rao v. Karneswaramma I.L.R. (1917) Mad. 651. are different, the question there being as regards an attachment. Similarly, in the Allahabad case, Sant Lal v. Umrao-un-nissa I.L.R.(1889) All. 96, it appears that although the judgment-debtor had before the date of sale complied with the order of the Court as regards security, the sale was held through an irregularity on the part of the officers of the Court owing to circumstances for which the judgment-debtor was not responsible, The sale was accordingly set aside.
6. In the present case, there is no question of delay or irregularity on the part of any one except perhaps the judgment-debtor himself. Being aware that the sale was to be held on March 28, he took no steps up to that very day, almost till the very hour of the sale, rendering it impossible to transmit the order in time. We are doubtful, as we have said above, whether the decreeing Court has power to stay execution. In any case, it was not, we think, a proper order to make under the circumstances.
7. It is not, therefore, necessary to go into the question as to whether the order of stay did not precede by a few minutes the time of the sale, much less to go into the question whether the clocks of the Subordinate Judge and the Mamlatdar agreed. One of the effects of allowing an application such as the present would be that whilst a few minutes before the sale a stay could be obtained on easy terms, immediately after the sale, Order XXI, Rule 89, would come into effect, imposing much heavier terms on the judgment debtor. We do not think the law intended, or desired, to encourage action of this kind on the judgment-debtor's part.
8. It appears to us, therefore, that both on the facts and in law the judgment-debtor has put himself in the wrong.
9. We dismiss the appeal Costs throughout on the appellant.