ORDER :- This is a revision under S. 115, C. P. C. by Ram Pratap and another against the order dated 23-2-1963 of the Civil Judge of Gorakhpur dismissing their application, in substance, for setting aside the order confirming the sale.

2. After obtaining a final decree under Order XXXIV, Rule 5, C. P. C. for the recovery of the mortgage money by the sale of the mortgaged property Mohan Lal, decree-holder-opposite party No. 1, applied for execution of the decree. The decree was against Uma Shanker, opposite party No. 2, father of the present applicants. The property was auctioned on 18-12-1961 and was purchased by the decree-holder himself. On 12-10-1961 the applicants moved an application for permission to sue as pauper to obtain a declaration that the decree already obtained was void and the property in dispute was not liable to sale in execution of that decree. At the same time, an application was made to restrain the decree-holder, who was the defendant in that suit, from proceeding with the auction sale. However, the Civil Judge passed an order that the confirmation of the sale shall be stayed till the disposal of the application. This order was passed on the date of the presentation of the pauper application (12-10-1961).

3. The pauper application was allowed on 4-7-1962 and on 13-7-1962 the decree-holder, Mohan Lal, moved an application that on account of there being no stay order the execution of the mortgage decree may proceed. This application was eventually allowed and the sale was confirmed on 6-8-1962.

4. On 7-7-1962 the decree-holder defendant, moved an application for dispaupering the plaintiffs-applicants and this application was allowed under order dated 25th August, 1962, and the permission already granted to sue as pauper was withdrawn.

5. On 6-12-1962 the applicants moved the Civil Judge for setting aside the order confirming the sale. In fact, the request made was that the execution proceedings be recalled and set aside with costs. The Civil Judge has rejected the application and in an earlier sentence mentioned that the application was misconceived and liable to be rejected.

6. 'Misconceived' means that an application though not maintainable has been moved. Consequently, if it is found that the present application was maintainable it would mean that the Civil Judge failed to exercise jurisdiction which was vested in him, and in the circumstances the High Court can in exercise of the revisional jurisdiction pass a suitable order. The revisional jurisdiction can also be exercised under clause (c) of Section 115, C. P. C. as the confirmation of the sale would be in disregard of the stay order passed by the same court in another proceeding, though by the predecessor of the Presiding Officer who ordered the confirmation of sale. For so long as a stay order is in existence no action in disregard thereof can be taken and the passing of an order in disregard of the stay order shall amount to breach of the provisions of the law. The scope of clause (c) of Section 115, C. P. C. was considered by the Supreme Court in Jagdish Prasad v. Ganga Prasad, AIR 1959 SC

492 and it was held that the revisional jurisdiction could be exercised under clause (c) of Section 115, C. P. C. if there was breach of the provisions of the law.

7. To put it differently, if the stay order continued to be in force after the permission to sue as pauper was granted, the sale in execution of the mortgage decree in favour of the decree-holder could not be confirmed and this Court can in exercise of the revisional jurisdiction set aside the order illegally confirming the sale, and thereby restore the conditions as they would have been had the stay order been respected. The material point for consideration, therefore, is if the stay order dated 12-10-1961 continued in force even after permission to sue as pauper was granted.

8. Order XXXIII C. P. C. governs suits by paupers. A suit can be instituted by a pauper subject to the provisions of Order XXXIII C

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