1. This is a suit to recover a jote which belonged to the plaintiff and which was sold in execution of a decree for Rs. 593 obtained against her and her husband by the first defendant Umesh Chunder Chuckerbutty in November 1885. The jote was sold on the 17th April 1886 and was purchased by the second defendant Horro Sundar Mozumdar. The plaintiff''s case is that the sale was illegal and did not pass the property. The facts are fully stated in the judgment appealed from and we need not repeat them. We have only two questions to consider in this appeal;-1st, as to the effect of an ex-parte order made by the Appellate Court on the 16th April 1886 to stay the sale. That order was made pending an appeal from the decree for the satisfaction of which the property was sold, hut the sale took place before the order reached the Court which ordered the sale, 2nd, whether the appellant (the plaintiff) can now be allowed to contend that the sale was invalid on this ground. The respondents say it was not distinctly set out in the plaint or put in issue, that they have had no opportunity of meeting it. We should add that the lower Appellate Court reversed the decree of the Munsiff and dismissed the suit holding it to be time barred under article 12 of the Limitation Act. The case then came before this Court on second appeal, and a Division Bench reversed the decree of the Subordinate Judge and restored that of the Munsiff. The learned Judges on review, however set aside their decree and for the reasons stated in their judgment of the 7th March 1892 directed that the appeal should be heard de novo. It has been entirely re-argued before us and we are in no way hampered by the conclusion at which they arrived.
2. The second question is not of any importance in the view which we take of the first; but we may say that if the appellant could succeed on the first question we should be disposed to allow her to raise it. The plaint is no doubt most vaguely drawn and the sale was substantially impeached on the ground that the property sold was not the property attached. But the plaint does not set out as one of a number of alleged irregularities that the sale took place in contravention of the order of the Appellate Court, and although the matter was not put in issue, it was referred to and considered in the Lower Courts. We think however that the appeal must fail on the first question. A suit to set aside the sale is now out of time and the appellant can only succeed in her suit if the order of the Appellate Court to stay the sale rendered the sale which afterwards took place, a nullity.
3. We think no such effect can be attributed to it. An order of an Appellate Court u/s 545 of the Procedure Code to stay execution of a decree from which an appeal is pending is necessarily in the nature of a prohibitory order, and as such would only take effect when communicated. The order in this case was to postpone the sale until further orders were issued, but the sale took place before the order reached its destination. The Appellate Court has nothing to do with the execution of the decree; the execution proceeds under the direction of the Court which made the decree and it has full authority to execute; it. An order u/s 545 does not cancel the order for sale, nor does it purport to undo anything which has been done : its utmost effect is to stop further action in the direction of execution, but it would only have that effect when it reached the Court or person whose duty it was to obey it. There is nothing here to fix the decree-holder with any knowledge of the order, the Court executing the decree knew nothing of it, there was a valid subsisting order for sale and the sale took place in pursuance of that order. We cannot under such circumstances hold that the sale was void in law. Possibly the plaintiff might, if she bad taken proper and timely measures, have got the sale set aside before it was confirmed. But it has been confirmed and we think it cannot be treated as a nullity on the ground advanced. It was argued that the sale was really stayed u/s 546 and that the Court was bound to stay it on the application of the judgment-debtor; but the section clearly contemplates an application to the Court which passed the decree and not to the Appellate Court, and here there was no application within the meaning of that section. Section 545 deals with the powers of the Appellate Court to stay execution.
4. The cases cited by the appellant in support of the contention that the sale was bad do not, we think, bear it out. In the cases of Foujdar Khan v. Bainee Doobey and another N.W.P. High Court Rep. III 398, Maijha Singh v. Jhow Lal N.W.P. High Court Rep. VI 354 and Mian Jan v. Man Singh ILR 2 All 686 the sale was held after the order directing the sale had been withdrawn by the Court which made it, but before the order reached the officer who was conducting the sale and it was held that the sale took place without authority. That was not so here. The case of Nonidh Singh v. Mussumat Sohun Koer N.W.P. High Court Rep. IV 135 is not so clear and the facts are not fully stated. It is doubtful whether the order of the Appellate Court postponing the sale did not reach the Subordinate Judge who had ordered the sale in time to admit of its being postponed. But however that may be, the Court set aside the sale treating the order for postponement as invalidating the sale notification, in the publication of which there was consequently held to be an irregularity. The sale was not treated as void. The case is certainly a hard one as regards the appellant, as the order to stay execution was made after great delay, and indeed the appeal ought in due course to have been disposed of before the day fixed for sale. We cannot now, however, give him any relief and must dismiss the appeal but we do so without costs.
