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 17th 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 17th 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 29th of November 1922 and the stay order;, was automatically discharged.
4. An application under Order XXI, Rule 90 was, however, presented on behalf of the judgment-debtors for setting aside the sale which took place after the order of the stay of execution had been passed by the District Judge. The learned, Munsif refused to set aside the sale by his order datad the 23rd of September 1922. An appeal was preferred from this order and the learned District Judge has allowed the appeal and set aside the sale. The execution second appeal and the revision have been filed to this Court from the order of the Appellate Court dated the 26th of January 1923.
5. The first question which we have to decide is whether an appeal lies or whether we must consider this case on the revisional side.
6. It is to be noted that in this particular case, it was the decree-holder himself who had purchased the property at an auction-sale and it is the decree-holder alone who has come up to this Court. The interest of any third party like a stranger auction-purchaser has not come in at all. Had that been the case there would have been no difficulty in saying that the application was one falling exclusively under Order XXI, Rule 90. We have had that application read to us and the substantial ground raised in it was that the sale itself was a nullity and not only, that there had been an irregularity in the conduct of it. It is to be noted that if the sale is to be set aside on. the ground that it was absolutely illegal and not merely irregular the case would not come within the four corners of Order XXI, Rule 90 which refers to material irregularity or fraud in publishing or conducting it. When the auction-purchaser is the decree-holder himself and when an application is made to have the sale set aside on a ground other than that covered by Order XXI, Rule 90 and there is not an application under Order XXI, Rule 89, then we are of opinion that it raises a question within the meaning of the expression 'execution discharge or satisfaction of a decree' as mentioned in Section 47 of the Code of Civil Procedure. Such a question has to be determined by the Execution Court under the powers conferred on it by that section. Then under Section 2 of the Code of Civil Procedure all such orders are really decrees and can be appealed against as such. The application for setting aside the sale, although ostensibly one made under Order XXI, Rule 90, was obviously a composite application, and the ground on which the sale was sought to be set aside, was that it was altogether null and void and illegal and not that it was merely irregular. We are, therefore, of opinion that the order passed by the learned Munsif fell under Section 47 of the Code of Civil Procedure. In that view of the matter there was a first appeal before the District Judge and the appellant is competent to come up in second appeal to this Court.
7. We may mention that even if we were considering this case on the revisional side we would be disposed to interfere. If the order passed by the District Judge was not an order passed under Section 47 of the Code of Civil Procedure at all but was an order which was passed by an Appellate Court hearing an appeal from an order refusing to set aside the sale, on an application under Order XXI, Rule 90, then it is clear that the learned District Judge has committed a material irregularily in the exercise of his jurisdiction. If he was proceeding to dispose of an application made under Order XXI, Rule 90 he had to fix his attention not only on the material irregularity alleged in the application but had also to see whether that material irregularity had or had not resulted in any substantial injury to the applicant. The learned District Judge does not use the word irregularity in his judgment at all but calls the sale illegal and he has not gone on to consider whether there has or has not been any substantial injury caused. Even in this view of the matter, therefore, the order of the District Judge cannot stand.
8. Coming to the merits of the case we are of opinion that the sale which took place on the 17th of August 1922 should not have been set aside. In the first place we have to consider the wording of the actual order for stay passed by the lower Appellate Court which has been set forth in full in the opening portion of our judgment. It is clear that that order was not an absolute order for stay which came into effect as soon as it was passed. It is clear that the order was contingent on the applicant guaranteeing to make up the amount outstanding to Rs. 1,640 odd. The order was obviously addressed to the Execution Court where the guarantee had to be given. We are of opinion that so long as the condition required for coming into effect of that conditional order was not fulfilled the order did not come into effect. The facts recited by us make it clear that on the day fixed for sale all that the Execution Court did was to postpone the sale for two days. The judgment-debtors offered no guarantee to the Execution Court and none was taken. It is clear, therefore, that there was no absolute stay order in force at the time when the sale actually took place at 2 p. m. that afternoon. In this view, therefore, the sale was not at all illegal.
9. So far as the order postponing the sale passed by the Execution Court itself is concerned it is clear that that order was passed after the sale had actually taken place. The sale therefore, cannot be said to be invalid in view of the order passed by the Execution Court.
10. Under the circumstances it is unnecessary for us to consider the broader question whether a stay order passed by an Appellate Court automatically comes into effect as soon as it is passed or whether it does not take effect until it has been communicated to the Execution Court.
11. We accordingly allow this appeal set aside the decree of the lower Appellate Court and restore that of the Court of first instance with costs in all Courts.
12. In view of this order no separate order is now necessary on the application for revision.