Madan Mohan Mitter vs Ram Huri Sahu and others

In this case the learned Subordinate Judge refused to entertain an application for an order absolute for the sale of mortgaged property, on the ground that an appeal had been preferred against the preliminary decree made on the mortgage, and that he could not therefore lake any proceedings on that decree. We think that that is no answer. The mere fact that an appeal has been filed, in no way fetters the authority of the lower Court to proceed in accordance with law, and in pursuance of the decree, either as in the case of mortgaged property by proceedings for an account to be taken, and if the amount be not paid, to make an order absolute, or to stay execution in other cases. As a matter of fact in this particular case, the appeal to this Court has been, we are informed, dismissed, and so the question before us is now practically a question of costs, as the Lower Court could not now have the same objection to entertain an application for an order absolute, for the sale of the property as it had before. We have been asked to make the order absolute here, but we think it would be more properly made in the Court below. The learned Judge in the Court below has not heard the opposite party, or considered any objection that might be put forward by him, and he is unquestionably entitled to be heard. That being so, the case will go back in order that the application for the order absolute as also the objections of the other side may be heard. The appellant is entitled to the costs of this appeal, which he can also add to the amount of the mortgage. We assess the hearing fee at 5 gold mohurs. The record will be returned forthwith.