Richard Garth, C.J. (Macpherson, J., concurring)
1. We think that this rule should be made absolute.
2. It was applied for under these circumstances: One Gossain Money Puree had obtained a decree against one Chucka Sing in the Gya Court, dated the 30th August 1880, by which the sale of certain property, which had been mortgaged to him by Chucka Sing, was ordered to be made. That decree had been confirmed by the High Court.
3. Chucka was the father of a Mitakshara family; and after this decree had been obtained his sons brought another suit to have it declared that they were entitled to certain shares in the property which had been ordered to be sold, and which Chucka Sing had no right to mortgage.
4. Meanwhile the mortgagee, the plaintiff in the first suit, proceeded to execute his decree; but the plaintiffs in the second suit (the sons) applied for, and obtained, an interim injunction from the Subordinate Judge against the plaintiff in the first suit, restraining him from selling the property until the second suit should have been heard and decided.
5. On the 20th of December 1883 that suit came on to be heard, and was decided against the plaintiffs (the sons of Chueka Sing); whereupon, on the 30th of January 1884, the plaintiff in the first suit (the mortgagee) applied for execution against the mortgaged property, and the usual sale proclamation was issued.
6. The plaintiffs in the second suit, however, who had appealed from the decree which had been made against them, applied for and obtained from the Subordinate Judge, on the 14th of May 1884, a further injunction, restraining the plaintiff in the first suit from executing his decree until the appeal in the second suit should have been heard.
7. This rule was then obtained upon the ground (amongst others) that the Subordinate Judge had no right, under the circumstances, to grant the injunction, inasmuch as he had decided against the claim of the plaintiffs in the second suit, and had nothing to do with the appeal to this Court.
8. It has now been contended on behalf of the plaintiffs, that by analogy to Section 546 of the Code of Civil Procedure, the Subordinate Judge, if he considered it right and equitable, had jurisdiction to stay execution in the other suit, until the appeal to this Court had been heard.
9. We think, however, that Section 546 has nothing to do with the question before us. That section only relates to staying proceedings in execution by the Court which passed the decree in which the proceedings are pending. That Court has a right, under certain circumstances and subject to certain conditions, to stay the execution of its own decrees while those decrees are under appeal.
10. But here the lower Court has taken upon itself in this suit to stay the execution of a decree which has been pronounced by the High Court in another suit.
11. The Subordinate Judge had in point of law no power to deal with the proceedings in that other suit at all. He had a right, whilst the questions in this suit were awaiting trial, to restrain the defendants by an interim injunction from enforcing his decree in the former suit. That he might do by an order upon the defendants personally. But as soon as those questions were decided against the plaintiffs, the Subordinate Judge had no right, we think, to restrain the defendant further, upon the mere possibility of the Appellate Court reversing his decree; and it is clear that he had no right to do so under the section of the Code upon which he appears to have acted.
12. If any Court has a right to grant an injunction now, we presume it would be the Court of Appeal. But it is no part of our present duty to decide whether any Court has such a power, or, still less, that, having the power, it ought to exercise it.
13. All that we now say is, that the Court below, having made a decree against the plaintiffs, had no right, in aid of the plaintiffs, to restrain the defendant from proceeding in the other suit.
14. The rule must be made absolute with costs.