C.C. Ghose, J.
1. This is an application on behalf of the petitioner to England -- Kumar Sarat Kumar Roy--for an order for stay of further proceedings in a certain suit being suit No. 278 of 1923 in the Court of the Third Subordinate Judge of Tipperah pending the hearing of an appeal to His Majesty in Council arising out of First Appeal No. 102 of 1927.
2. The petitioner obtained certificate for leave to appeal to His Majesty in Council some time in December 1929 and his appeal has been finally admitted on 28th January 1930. The facts shortly stated are as follows: It appears that certain persons who are three in number and who may be described as the Roys, executed a mortgage in favour of the appellant to England for Rs. 1,50,000 some time in January 1921. At the time, when the mortgage was executed, the properties mentioned therein were the subject-matter of a suit for partition in which the mortgagors were some of the parties. There was a petition for compromise filed by the parties in the partition suit and thereupon a decree on compromise was passed on 1st March 1921. The result was that certain specific properties were allotted to the mortgagors. Thereafter, the mortgagors thought it necessary to execute a fresh mortgage in favour of the appellant to England on 16th March 1921. On 9th August 1921, the mortgagors were adjudicated insolvents. On 3rd August 1923, the appellant to England instituted a suit to enforce the mortgage being suit No. 278 of 1923 in the Court of the Subordinate Judge of Tipperah. The Official Assignee was made a party defendant in that suit. It is in evidence (and the evidence on this point has been accepted as correct both by the learned Subordinate Judge and by this Court on appeal) that the summons in that suit was served on the then Acting Official Assignee, Mr. Remfry, and that it was signed by him in acknowledgment of proof of service.
3. An ex-parte preliminary decree on the mortgage was made on 20th September 1923 there being no appearance on behalf of the Official Assignee; and the said decree was made final on 2nd April 1924. Thereafter, some time in June 1924, the Official Assignee--filed a suit in the Tipperah Court praying that the ex-parte decree in the mortgage suit might be set aside on various grounds of fraud. The matter was gone into at great length by the Subordinate Judge and ho came to the conclusion that there was nothing whatsoever in the plaintiff's case and that the suit should stand dismissed. He accordingly made a decree in 28th February 1927 by which the Official Assignee's suit was dismissed. The matter was taken on appeal to this Court and this Court by its judgment and the decree bearing date 15th July 1929 reversed the judgment and decree of the Subordinate Judge and directed that the decree in the mortgage suit should stand set aside and that the mortgage suit being Suit No. 278 of 1923 should be reheard. It is against that judgment and decree that the present petitioner has obtained leave to appeal to His Majesty in Council.
4. The petitioner contends that, in the event of their Lordships of the Judicial Committee setting aside the judgment and decree of this Court dated 15th July 1929, he would be put to unnecessary costs and that, and in the events which have happened, an order should be made by this Court directing a stay of the hearing of the suit on the mortgage. The Official Assignee has appeared by the learned Advocate-General before us and on his behalf two contentions have been pub forward : (i) that the order prayed for is such as cannot be made by this Court under the provisions of Order 45, Rule 13, Civil P.C., and (ii) that with the passage of time the Official Assignee might lose very important evidence.
5. The second contention may be disposed of at once. It is pointed out that one of the witnesses, namely, Har Kissen Bhattar, who had given evidence in the Official Assignee's suit has since died and that another witness whose evidence appears on p. 62 of the paper book of the appeal in this Court named Radhika Mohan Saha 'is getting old and is not in good health'. There is nothing of any substance in what is stated. As regards Har Kissen Bhattar's evidence, I am by no means sure that that evidence, having regard to the fact that the deponent has since died, will not be available later on. As regards Radhika Mohan Saha, it appears from p. 62 of the paper book that he is only 43 years old. I am unable to assent that he is an old man and I do not think that any importance need be attached to the bare suggestion which is made that he is not in good health.
6. As regards the first contention, namely, that an order such as has been prayed for cannot be made under the provisions of Order 45, Rule 13, Civil P.C., all that I need say is that, it seems to me that the words are wide enough to cover a case like the present. It has been ruled in several cases that an order such as may be necessary in the circumstances of a particular case pending the hearing of an appeal to His Majesty in Council may be made under the provisions of this section. Each case must depend on its own facts and it is not possible to set out exhaustively the cases that may be brought within the ambit of this section from time to time. But apart from this section, there are several cases which have laid down that this Court has inherent power to make such orders or give such directions as may be called for in the circumstances of a particular case pending the hearing of an appeal to His Majesty in Council. Speaking for myself, I do not think there is any difficulty in our making the order as is prayed for, provided the materials before us warrant such an order. On the present record, there is a good deal to be said in favour of the view contended for by the appellant to England that, should the judgment and decree of this Court be reversed by their Lordships of the Judicial Committee, he would be put to unnecessary costs and inconvenience. After all, the delay such as may take place if we assent to the prayer of the petitioner will only affect or prejudice the appellant to England. He is the plaintiff in the suit on the mortgage, and if there is delay in proceeding with the suit oh the mortgage, it is he, and he only, who will suffer. The Official Assignee does not stand to lose anything by such delay.
7. It is not necessary for me to pronounce any opinion upon the respective contentions on the merits. Such contentions will be canvassed before their Lordships of the Judicial Committee. But all that I am concerned with at the moment is to find out whether there is or is not a prima facie case for an order such as has been prayed for in this case. My answer is that such a prima facie case has been made out and, in my opinion, the present application ought to be granted.
8. There will be no order as to costs.
9. I agree.