An uncommunicated order for stay of proceedings does not take away the jurisdiction of the subordinate Court. A sale held in contravention of an uncommunicated order for stay of proceedings is valid.

G.N.DAS, J.:- These two matters are interrelated and arise out of certain proceedings in execution of a decree which was obtained by respondents 1 and 2 against respondent 3 in Suit No.16 of 1943. The decree was passed on 4-5-1943. The decree was for recovery of money which was due to respondents 1 and 2 in respect of a legacy given to them by one Srimati Saila Sudha Devi. The allegation was that the money due under the legacy, had been misappropriated by respondent 3 who was the executor under the last will of Srimati Saila Sudha Devi. This decree was executed on certain occasions. Ultimately, on 27-5-1948, the present appellant the petitioner stood surety for the due performance of the decree by her husband, respondent 3, the judgment-debtor.

The appellant agreed to pay the decretal dues in certain instalments and in case three consecutive instalments were unpaid she bound herself to pay the decretal dues and as security for payment of the said dues created a charge in respect of the property now in dispute. As was to be expected, three consecutive instalments were not paid with the result that the decree-holders proceeded to realise the unpaid decretal dues by a sale of the charged property after taking the necessary proceedings as contemplated by S.145, Civil P.C. Ultimately, the executing Court directed the disputed property to be put up to sale. The order for sale was made on 19-11-1949. On 23-11-1949, sale proclamation was issued fixing the sale for 9-1-1950. On 22-12-1949, the appellant moved this Court in revision against the order of the executing Court dated 19-11-1949, directing the disputed property to be sold.

The appellant obtained a Civil Rule being No.2026 of 1949, and an ad interim order for stay of further proceedings pending in the Court below was made by this Court. It is common ground that the ad interim order was not communicated by this Court to the Court below at any time before 9-1-1950. It appears that on that date the appellants pleader wanted to move the Court below by an unverified petition praying for stay of the sale. The executing Court thereupon asked the appellants pleader to move the petition in the presence of the decree-holders. It is stated that the appellants pleader failed to get in touch with the pleader for the decree-holders.

In consequence the petition was never moved in Court and the sale took place as scheduled on 9-1-1950. The property was knocked down to the decree-holders at the highest bid of RS.28,000/-. The bid however was not accepted till 25-5-1950. It does not appear that at that stage the appellant made any grievance before the executing Court that in view of the order for ad interim stay the sale was not an effective one and should not be confirmed. It appears that Civil RevN.No.2026 of 1949 (A), was ultimately heard by this Court and the Rule was discharged on 10-5-1950. Thereafter two applications were filed in the Court below on 22-6-1950. The first one was an application under S.151, Civil P.C. asking the executing Court to set aside the sale which was held on 9-1-1950. The allegation made in the petition was that in view of the interim order for stay of further proceedings the sale was an illegal one and should be set aside.

The second application was under O.21 R.90, Civil P.C., seeking to set aside the sale on the ground of material irregularity and fraud in publishing and conducting the sale and consequent inadequacy of price. The first application was dismissed by the learned Subordinate Judge on 19-12-1950. The second application was also dismissed on 15-1-1951. Against the order of the learned Subordinate Judge dismissing the application under S.151, Civil P.C. the appellant moved this Court in revision giving rise to Civil Revision No.534 of 1951. Against the order refusing to set aside the sale under O.21, R.90, Civil P.C., the appellant preferred F.M.A. 55 of 1951.

2. I shall first deal with the Civil Revision Case. Mr. Banerjee appearing for the petit