Straight and Brodhurst, JJ.
1. This is an appeal from an order of the Subordinate Judge of Aligarh, dated the 15th November 1884, granting a temporary injunction to stay the sale of certain property under Section 492 of the Civil Procedure Code. Before disposing of this appeal, it is necessary to refer to a few facts mentioned to us by the learned Counsel for the appellant, and which we must take to be correct, as the respondent has not appeared either in person or by counsel to contradict them. It appears that on the 8th June 1880, Amolak Ram and Phul Chand advanced to Naubat and others a sum of Rs. 50,000. On the 20th September 1881, the appellant obtained a decree for Rs. 58,513. On application being made for the sale of this property against which this sum was secured by execution of the decree, the property being ancestral the decree was transferred for execution in due course to the Collector, and the 7th January 1882 was fixed for the sale of the property. An application was made for the postponement of the sale which was granted and the 20th April 1882 was fixed for the sale of the property. On the 19th April 1882, another application was made for the postponement of the sale, which was again postponed, and the 20th June 1882 was fixed for the sale of the property.
2. Lakhan Singh, one of the sons of the Judgment-debtor, instituted a suit, and on his application the sale was again postponed. On the 11th December 1882, Lakhan Singh's plaint was rejected as insufficiently stamped. On the 19th February 1883, Lakhan Singh again sued, paying the proper amount of Court-fees, and again applied for the postponement of the sale, which was again postponed. This suit was also thrown out, and Lakhan Singh appealed to this Court, and applied for postponement of the sale. This appeal was rejected, and the sale was ordered to be proceeded with.
3. At this stage, the second son of the judgment-debtor instituted a suit, and on the 15th November 1884, he made the following application: 'The suit was instituted to recover possession of two-thirds of 5 biswas in mauza Jalesar, 10 biswas in mauza Ismailpur, and two-thirds of mauza Kutra and to protect the same from the decrees of judgment-creditors. The 2nd December 1884 was fixed for laying down the issues. The rights in all the three above-mentioned villages have been advertised for sale on the 20th November 1884, in execution of a decree held by Amolak Ram and Phul Chand, defendants. Hence it is hereby prayed that the auction-sale of the rights in the three villages may be postponed pending the decision of the case.' The order passed by the Subordinate Judge is as follows: 'A reference to the record of the case of the regular suit shows that a regular suit regarding these properties is pending. Ordered that the auction-sale fixed for the 20th November 1884 be postponed.'
4. It is clear that, in waiting up to the 15th November 1884, in making this application, there was an unnecessary delay on the part of the plaintiff. But, apart from this, by Section 494 of Act XIV of 1882, before granting an injunction under that section, it is directed that 'the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated ' by delay, direct notice of the application for the same to be given to the opposite party.'
5. Now the Subordinate Judge in this case did not direct notice to be issued to the other side of this application, and his order directing the stay of sale was made ex parte, without the other side being given an opportunity to show cause. On this ground alone the order is open to exception.
6. Again, before an order under Section 492 can be made, it must be shown that the property was about to be 'wrongfully sold in execution of a decree.' Now in this case what was advertized to be sold was the rights and interests of the plaintiff's father in this property, and it cannot be said that the property was being 'wrongfully sold in execution of a decree.' Besides, the application on the face of it discloses no sufficient ground to warrant an order under Section 492 being made as prayed. The appellant could have moved the Subordinate Judge to discharge the injunction under Section 496 of the Code, but he has not done so, and has come up directly in appeal before us. Under the circumstances of the case, the only order that we think proper to make is, that the order of the Subordinate Judge directing stay of sale of the property be set aside, and that execution should proceed, subject to any proper application that the respondent may be advised to make.