Sadasiva Ayyar, J - (1.)The facts have been set out in the judgment of my learned brother, and it is unnecessary for me Civil Miscellaneous Appeals Nos. 210 and 211 of 1911. to repeat them. The petition put in by the first defendant s sons to set aside the Court auction sale is filed by them not on the ground that they are also parties to the decree (in which the sale was held) as represented by their father, the first defendant, but as independent persons who owned shares in the property A sold and who are entitled in consequence to file a petition under Order XXI, Rule 90 (old, Section 311) to set aside the sale on the ground of material irregularity and consequent substantial injury. I agree with the Lower Court in its conclusion that there was no material irregularity in publishing and conducting the sale except that the sale was conducted and concluded after the High Court s order of stay (which is of course a very material irregularity). No substantial injury is proved to have been caused by any such material irregularity. The property was estimated by the Amin as worth only 58,000 and odd rupees and it was sold for 68,000 and odd rupees.
(2.)The first defendant from his conduct in these execution proceedings has clearly proved himself to be a cunning litigant, and the affidavit produced on his behalf is not reliable even though supported by a telegram from one Palaniappa Chetty, who has not been examined. The want of bidders, I am inclined to hold, was due to the litigious nature of the first defendant who had set up his mother-in-law to file claim petitions on behalf of his (the first defendant s) sons, to bring a suit on their behalf, to put in a revision petition on their behalf against the claim order and to do several other acts, more in order to delay and defeat the decree-holder than with the bond fide object of prosecuting any tenable claim. Purchasers will naturally be chary of making bids for the property belonging to the first defendant and his sons, as they are sure to purchase a protracted litigation along with the property. Appeal Against Order No. 210 of 1911 in which the first defendant s sons are the appellants must therefore in my opinion be dismissed. The parties will bear their respective costs. Coming to Appeal against Order No. 211 of 1911, this appeal arises out of a petition filed under Section 47, Civil Procedure Code, and also under Order XXI, Rule 90, by the first defendant himself. So far as his application to set aside the sale is grounded on irregularity and substantial injury under Order XXI, Rule 90, it cannot be granted for the reasons already set out by me in Appeal against Order No. 210 of 1911. The contention under Section 47 of the Civil Procedure Code is based on the following facts:
(3.)The first defendant s sons put in a claim petition for release of their shares in the attached houses. The Subordinate Judge dismissed the claim petition on the 15th July 1911. On the 20th July 1911 Civil Revision Petition No. 378 of 1911 was filed in the High Court to revise the Subordinate Judge s order dismissing the claim petition. On that same date (the 20th July 1911) an ex parte order was obtained from a Judge of this Court stopping all further proceedings in the matter of bringing the attached houses to sale in execution of the decree. Notwithstanding the stay-order, the sale of the properties was concluded on the 21st July 1911. The question is whether such a sale is not wholly illegal as having been conducted by the Subordinate Judge s Court in violation of an order from a superior Court staying the dale. In Muthukumarasami Rowther Minda Nayinar v. Kuppusami Aiyangar (1910) I.L.R., 33 Mad., 74, it was held following Bessesswari Chowdhurany v. Horro Sundar Mozumdar (1910) I.L.R., 33 Mad., 74, that the stay-order passed by a superior Court does not become effective till it is communicated to the inferior Court, and that an execution sale made by the inferior Court in ignorance of the stay-order is a legally valid sale. With the greatest respect, I am unable to agree with this decision though it is in accordance with Bessesswari Chowdhurany v. Horro Sundar Mozumdar (1910) I.L.R., 33 Mad., 74. It seems to me that, unless the order of stay or order of injunction passed by the superior Court made it a condition that order shall take effect only from the date of its communication to the Lower Court, or to the party enjoined (as the case may be) such an order suspends the power and jurisdiction of the Lower Court to conduct further proceedings from the moment when the order of superior Court was passed. I do not think that I could put the reasons for this view better than they have been enunciated in the judgments in Sati Nath Sikdar v. Ratanmani Naskar (1912) 15 C.L.J., 335 and Hem Chandra Kar v. Mathura Santhal (1912) 16 C.W.N., 1031, and I shall therefore not attempt it. In the result, I would set aside the sales concluded on the 21st July 1911, by the Subordinate Judge s Court of Ramnad as having been held without jurisdiction after the passing of the order of this Court staying the sale, which order was dated the 20th July 1911, and I would direct that a fresh sale he held after fresh proclamation. A sale held without jurisdiction may, in a sense ho said to be a sale vitiated by material irregularity, but it is unnecessary to rely on Section 311 (Order XXI, Rule 90) in order to set aside such a sale, that is, it is unnecessary to prove substantial injury also; but the irregularity is so grave that, in the words of their Lord- ships of the Privy Council in Malkarjun v. Narhari (1902) I.L.R., 25 Bom., 337.at p. 348 (P.C.) "it is sufficient by itself, to entitle" the judgment-debtor "to vacate the sale." Parties will hour their respective coats in both Courts. [ might be permitted to remark that in respect of a stay order passed by an appellate Court, it seems to me advisable, in order to avoid future complicated litigation to provide usually that the order shall take effect only from when the order is communicated to the lower Court which has to guide itself in accordance with such order. Spencer, J.