1. In this case the notice of motion asks for an order 'that the sale of the appellant's immoveable properties advertised for the 11th Nov. 1912 in the Court of the Sub-Judge of Raranad at Madura be stayed till the further orders of this Court and that all proceedings in execution of the decree in O.S. No. 160 of 1911 dated the 20th Sep. 1911 be stayed against the appellant pending the disposal of this appeal and for such other orders as this Hon'ble Court may deem proper and necessary in the circumstances of this case and for an order that the costs of this application be costs in the appeal.'
2. A preliminary objection has been taken that under Rule XII 6 (2) the application should be made to the court which made the order for sale, i.e., in this instance to the Sub-Judge's Court at Ramnad.
3. Mr. Odgers has contended that there is concurrent jurisdiction in the Subordinate Judge's Court and in this Court and he has referred to the English Rules of the Supreme Court order LVIII Rules 16 and 17. But the English'Rules expressly provide for concurrent jurisdiction and no question could arise thereunder. The question for us is, did the Legislature intend, while giving the appellate court the general power conferred by Order XLI Rule 5, to make special provision that an application for stay of an order for sale of immoveable property should be made only to the court which made the order.
4. In view of the alteration of the language in Order XLI Rule 6 ('2) which re-produces the old Section 546 it seems clear that the Legislature intended that the application should be made only to the court which made the order. There were doubts as to whether the appellate court would make an order for stay of an order for the sale of immoveable property (see Triveni Sahu v. Bhegwat Bux I.L.R. (1907) C. 1037and the language of the ensctment would appear to have been altered to remove these doubts and to make it clear that the application must be made to the court which made the order for sale.
5. We think the preliminary objection is good and we must uphold it. We must dismiss the application for the stay of the order for sale for the reasons above stated and we must also dismiss the general application to stay proceedings in execution of the decree as it is not shown that there are any proceedings other than those under the order for sale. The costs of this application will be costs in the appeal.