JUDGMENT Walsh and Gokul Prasad, JJ.
1. This appeal, which arises out of two applications made to the execution court, raises several questions. We propose to deal, so far as the decision of the case goes, with one point of law only which in our view is fatal to the appeal. Two applications were made to the court below on the 27th of October, 1919, to set aside a sale or, in other words, to declare that a sale which had been only held provisionally had become void in the events which had happened. There is a difficulty about the application under Order XXI, Rule 90. It is clear that the reason why two applications were made was that a difficulty was felt by the applicants and it was desirable to have an alternative or second string to his bow. The application under Order XXI, Rule 90, i.e, the application 112 C, breaks down by reason of the fact that no irregularity in publishing or conducting the sale was alleged or proved and no attempt was made to prove any loss resulting therefrom, and it is plain law covered by authority, namely, Shirin Begam v. Agha All Khan (1895) I.L.R. 18 All. 141, that it is necessary for the applicant to make that position good. The other application, which is the substantial one and which has formed the subject of argument before us, we have treated as an application under Section 47 arising out of the execution of the decree, being in substance an application to declare the sale void and of no effect. For the purpose of the point of law to be decided it is not necessary to set out the whole of the history of this matter. It is sufficient to say that the applicant, Lala Purshottam Saran, purchased the interest of the judgment-debtor in the property in question subject to a heavy liability under a mortgage decree which had been obtained by Hargu Lal, the decree-holder, in 1917, and in January, 1919, the decree-holder made an application for sale. After considerable delay objections were taken by the judgment-debtor or his successor and were heard and disposed of on or about the 12th of September, and an application was made by Purshottam saran, ex parte to this High Court, which forms the subject of our decision. At that lime no appeal had been filed against the order dismissing the objections. Indeed there could be none, because the High Court was closed except for vacation business, and it was therefore necessary that application should be made to the vacation Judge. The vacation Judge was informed by affidavit that no appeal had been filed and that it was proposed to file an appeal at the earliest possible moment, namely, at the commencement of the next sittings of the Court, In view of the fact that security had been filed by the applicant, the vacation Judge entertained the application and granted a stay of the sale. The sale had been fixed for the next day and it was not possible for the order of the High Court to reach the court below in time to stop the sale. Arrangements were made by which the court below was informed by telegram of the order which the High Court had made that day. The court, being in an obvious difficulty, made what turns out to have been a very sensible order. Having no order of the High Court before it, it refused to stop the sale, but made an order that if it should turn out that the sale had been properly stayed by the High Court, it would have to be cancelled. In the face of an order like that both parties of course would proceed with the sale at their own risk. On the 27th of October, an application was made ex parte to the Subordinate Judge asking for an order that the Bale be declared void, and the learned Judge appears to have made an order to that effect, but at the instance of the other party, also ex parte, subsequently cancelled it It is not necessary to deal with the legal effect of this particular proceeding, but it is desirable to point out to the learned Judge that, whether he could or could not cancel the order which ho had made on the 27th of October, if he made up his mind to do so, the proper Way to do so would be by writing or dictating a fresh order stating that his previous Order was cancelled and giving the reasons for such cancellation. The practice of scratching out or attempting to obliterate a previous order already passed is wrong. Passing from that the next important step was that an appeal, towards the end of October, was filed in the High Court, when the High Court was open for the purpose. The auction-purchaser was not made a party to that appeal and he was compelled to apply to the High Court to be made a party. An order to this effect was made. The hearing of the appeal was expedited and on the 19th of December, 1919, the appeal was dismissed on the merits and the order of stay granted by the vacation Judge on the 19th of September, was discharged. We may here, in passing, observe that the learned Judge of the court below has taken an erroneous view of the effect of a discharge of this kind, Assuming the stay order to have been properly obtained and granted within the jurisdiction of the Court, it is good as far as it goes and as long as it lasts until it is discharged; and a proper order duly made according to law, if it is subsequently discharged for good reasons, cannot be treated as of no effect. We are left with the question whether the order staying the sale of the 19th of September, was a good order. Chapter I, Rule 3, of our own High Court Rules enables a vacation Judge to exercise the appellate jurisdiction vested in the Court in any matter connected with or arising out of the execution of a decree which he considers urgent, and that would clearly authorize him to grant a stay of execution of a decree in respect of which an appeal was pending in the appellate Court. But an appellate Court has no jurisdiction to grant a stay of execution in a matter of which it is not already seised in appeal. The matter has been strongly argued on behalf of the appellant on the terms of Clause (1) of Rule 5, and if Clause (1) stood alone, there would be a good deal to be said for the contention, but the provisions in Clause (2), which empowers the court which passed the decree to grant a stay on sufficient cause being shown during the time provided by law for presenting an appeal, make it quite clear that that court alone has jurisdiction during the period before the appeal is presented and we think that this is the proper interpretation of Rule 5 as a whole. We are confirmed in this view by such authority as appears to exist upon the subject. In an unnamed ruling reported in the Weekly Reporter (1) a court of two Judges held that the High Court could not, under a provision of the law corresponding to the present Order XLI, Rule 6, direct a lower court to take security in execution of a decree when no appeal had been preferred to the appellate court against such decree. In 1904, a two Judge Bench in Calcutta, in the case of Bhagwat Rajkoer v. Sheo Golam Sahu (1904) I.L.R. 31 Calc. 1031 took the view that it is the court which has seisin of the appeal which is competent to stay the carrying out of the order appealed against pending the hearing of the appeal, and it was not competent to an appellate court to stay proceedings in the execution of a decree of a subordinate court merely because an appeal had been preferred against an order of the lower court refusing to set aside the decree. In that case there was no appeal pending to the appellate court against the decree itself. By implication a strong Bench of five Judges in Calcutta took the same view, in the case of Balkishen Sahu v. Khuynu (1904) I.L.R 31 Calc. 722 That Court held that the court which has seisin of the appeal can make an order staying proceedings pending the hearing. It is plain from the referring order which caused that Bench to be constituted that they took the view that such an order could not be made unless the court had seisin of the appeal. We, therefore, come to the conclusion that the order in this case which Purshottam Saran obtained in his own favour was made without jurisdiction and could have no legal effect in nullifying the sale which took place on the 20th of September. On this ground alone the appeal fails and the application was rightly dismissed, though, as appears by what we have said, not upon the grounds upon which the learned Judge dealt with the matter in his judgment. Both the respondents, the decree-holder and the auction purchaser, must have their, costs of this appeal.