Banerjee and Brett, JJ.
1. This is an appeal from an order of the Court below postponing the sale of the mortgaged properties and giving the judgment-debtor Rani Sundar Koer, time to have her property taken charge of by the Court, of Wards, so, that arrangements might be made for paying off the decree.
2. At the hearing of the appeal a preliminary objection was taken on behalf of the respondent, the order of the Court below, as it was an order under Sections 291 of the Code, Civil Procedure, and not under Section 244. If it was an order under Section 291 simply adjourning the sale, no appeal lay from it, as an order under Section 291 is not made appealable by Section 588. But then the learned vakil for the appellants contends, and we think rightly, that the case comes under Section 244 and that the order of the Court below was an order in effect, if not in terms, for stay of execution of the decree. The order in terms is no doubt an order for stay of sale, but as the decree is a mortgage decree directing the sale of the mortgaged property, and as, until the mortgaged properties are sold and found to be insufficient to satisfy the decree, no other proceeding in execution against the judgement-debtor can be taken, the stay of sale of the mortgaged property virtually amounted to stay of execution altogether; and that being so, the order should be taken to be one determining a question coming under Clause (e) of Section 244, and therefore being a decree within the meaning of Section 2 of the Code.
3. An appeal therefore lies against that order.
4. No the points urged in this appeal are, first, that the lower Court had no power under Section 545 of the Code of Civil Procedure to stay execution; second, that even if it be held that the Lower Court had power to stay the sale it could not stay the sale for the purpose of giving time to the judgment-debtor to pay off the decree, the granting of such time being in contravention of the provisions of Section 89 of the Transfer of Property Act; and third, that if the Court below had power to adjourn the sale, it ought not to have exercised that power without imposing terms upon the judgment-debtor, having regard to the circumstances of this case.
5. With reference to the first point, the argument is, that as the appeal, pending which the sale, was stayed, was not an appeal from the decree sought to be enforced, but was only an appeal from an order in the execution proceedings, and as Section 545 does not authorize the Court of first instance to stay execution pending an appeal after the appeal has been preferred, the power of ordering stay of proceedings in such a case being exercisable only by the Appellate Court, the Lower Court had no power to make the order it has made.
6. This arguments no doubt correct, if the assumption on which it is based is so. But it does not prove that the Court below had no power to stay the sale; and there is nothing in the order of the Court below to show that the stay of sale was granted under Section 545 of the Code of Civil Procedure, as the argument assumes.
7. The first contention of the appellants must therefore fail.
8. In support of the second contention it is urged that, as Section 89 of the Transfer of Property Act, unlike Section 87, makes no provision for extension of time for paying oil the amount of the decree but on the contrary expressly provides that upon the expiry of the time allowed for payment, an order absolute for sale of the mortgaged property or a sufficient part thereof shall be made, and there upon the defendant’s right to redeem and the security shall both be extinguished, any adjournment of sale in a case like this was in contravention of the provisions of Section-89 of the Transfer of Property Act, and was therefore illegal, and it is contended that, although Section 291 of the Code of Civil. Procedure gives the Court power to adjourn a sale and although that section has beep, made applicable to sales under the Transfer of Property Act by the rules made by the High Court under Section 104 of that Act, the rule making Section 291 applicable – to such sales is ultra vires, it not being, as Section 104 requires it to be, consistent with the Transfer of Property Act. And in support of this contention the observations of the majority of the learned Judge in the case of Kedarmath Raul v. Kali Churn Ram (1898) I.L.R. 25 Calc. 703 and the case of Tanirum v. Gajanan (1899) I.L.R. 24 Bom. 300 have been relied upon.
9. We are of opinion that the broad contention urged on behalf of the appellants is not correct. We do not think that Section 291 is necessarily and in all cases inconsistent with the provisions of Section 89 of the Transfer of Property Act. The mortgagor may not, after the expiry of the time allowed for payment, be entitled to ask for any extension of time; but that does not prevent the Court from adjourning the sale for proper reasons, nor does at prevent the operation of that portion of Section 291 which provides that the sale shall be stopped if, before the lot is knocked down, the debt and costs (including the costs of the sale) are tendered to the proper officer of the Court. It is one thing to grant the judgment debtor time to raise money to pay off the decree, it is quite another thing to allow the judgment-debtor to stop the sale of his property by paying down the amount of the decree, and not that alone, but something more namely, the costs of the sale.
10. Section 89 of the Transfer of Property Act no doubt provides that, if default is made in payment ^thin the time allowed, the Court is to make an order for the sale of the mortgaged property, or a sufficient part thereof, and thereupon the defendant’s right to redeem and the security shall both be extinguished, but still the property does not cease to be the property of defendant mortgagor, until the sale has taken place; and as the sale takes place only for the purpose of realizing the amount of the mortgage debt and not for the mere purpose of having the property sold, there is no real conflict between Section 89 of the Transfer of Property Act and that part of Section 291 of the Code of Civil Procedure, which directs that upon payment of the amount of the decree together with costs of the sale, the sale shall be stopped.
11. As for the case of Kedarnath Raut. v. Kali Churn Ram (1898) I.L.R. 25 Calc. 703. that is quite distinguishable from the present, the question for determination there being whether Section 310A of the Code, was applicable to a sale of mortgaged property, that section not having been made applicable to sales under that Act. It is true in the course of his judgement the learned Chief Justice remarks that, even if Section 310A of the Code had been extended by the rules of this Court to sales under the Transfer of Property Act, such extension would have been ultra vires, it being exceedingly doubtful, if it would have been consistent with the Transfer of Property Act, and that remark wag concurred in by the majority of the Court; but it was not necessary for the decision of the case. As for the Bombay case, with all respect for the learned. Judges who decided that case, we are unable to adopt the view taken by them. But though that is so, we feel bound to observe that after the order absolute for sale had been made under Section 89 of the Transfer of Property Act, the Court below had no power to adjourn the sale of the mortgaged property with a view to give time to the mortgagor to raise money to pay off the decree. That was a purpose for which it was not competent to the Court below to adjourn the sale. It could adjourn the sale to a future date in order to have a better sale, in the event of want of bidders, or for any other similar reason, but the object with which the sale was adjourned in this case was one that was not consistent with the provisions of Section 89 of the Transfer of Property Act,
12. As to the third point we think the contention is so far correct that having regard to the circumstances of the case, when the sale was adjourned as a matter of indulgence to the judgment-debtor, terms ought to have been imposed upon her. But it is unnecessary to give any specific direction under this head, as any future sale will have to be adjourned for other reasons, in the view we take of the case in appeal No. 417 of 1903
13. The result, then, is that though the second contention of the appellants partially succeeds, and also the third, the appeal must be dismissed, subject to the observations indicated above, and under the circumstances of the case we make no order as to costs.