JUDGMENT 1. On the 23rd December 1902, one Sheo Golam Sahai obtained a decree for sale upon a mortgage in the Court of the Second Subordinate Judge at Arrah. On the 2nd January 1904, one of the Defendants to the action made an application under sec. 108, C. P. C, to set aside the decree which so far as he was concerned had been passed ex parte; this application was refused on the 3rd February 1904. The Defendant applicant on the 4th May last preferred an appeal to this Court against the order dismissing his application under sec. 588, cl. (9), C. P. C, aud on the 4th July obtained this rule calling upon the decree-holder to show cause why the sale of the mortgaged property in execution of the decree in the suit should not be stayed pending the hearing of the appeal. The learned vakil who appears in support of this rule has relied upon the provisions of sec. 545, C. P. C, as also upon the cases of Pasupati Nath Bose v. Nanda Lal Bose I. L. R. 28 cal. 734 (1901), Brij Kumari v. Ramrick Das 5 C. W. N. 781 (1901) and Balkishen v. Khugno 8 O. W. N. 572 (1901). It is quite clear that sec. 545, C. P. C, has no application to the facts of the present case inasmuch as no appeal has been preferred against the decree in the original suit. The first of the three cases relied upon Pasupati Nath Bose v. Nanda Lal Bose I. L. R. 28 Cal. 734 (1901) is in our opinion of no avail to the Petitioner. All that was held in that case was that the Appellate Court has power to stay execution, when an appeal from an order in execution proceeding is pending before that Court, aud this decision was founded on the ground that by reason of the appeal, the Appellate Court has seisin of the whole execution proceedings and has as much power to stay proceedings under sub-sec (c) of sec. 244 of the CPC as the Court of first instance itself possesses. The second case relied upon by the Petitioner Brij Kumari v, Ramrick Das 5 C. W. N. 781 (1901) was decided upon grounds which appear to us to be wholly inapplicable to the case now before us. 244 of the CPC as the Court of first instance itself possesses. The second case relied upon by the Petitioner Brij Kumari v, Ramrick Das 5 C. W. N. 781 (1901) was decided upon grounds which appear to us to be wholly inapplicable to the case now before us. In that case it was held that a decree directiug the issue of a grant of a probate to the propounder of a Will is one that is capable of execution, aud stay of execution of such decree can be granted under sec. 545, C. P. C, pending the hearing of au appeal against the original decree. The last of the three cases referred to Balkishen v. Khuyno 8 C. W. N. 572 11904) also appear to us to be clearly distinguishable; in that case it was held that when au appeal is pending against a preliminary order made under sec. 215A of the Civil Procedure Code, the Court which has seisin of the appeal is competent to stay the carrying out of the order appealed against pending the hearing of the appeal. Now in the present case, we think it is impossible to say that this Court has by virtue of the appeal preferred against the order refusing to set aside the ex parte decree, acquired any seisin either of the original suit or of the execution proceedings, as it would, undoubtedly, have done if an appeal had been preferred either against a preliminary decree in the suit, or against an order made in the execution proceedings. In our opinion the proceedings based upon the application of the 2nd January 1904, made with a view to set aside the ex parte decree, are not proceeding in the suit which was terminated by the decree nor can they be rightly regarded as proceedings in execution of that decree. We are constrained to hold therefore that it is not competent to this Court to stay proceedings iu execution of a decree of a subordinate Court merely by reason of an appeal having been preferred against an order of refusal of the Court below to set aside the decree under sec. 108 of the Code of Civil Procedure. The view we take is in accordance with that taken by this Court iu the case of Mirsawaran v. Fairanan Khutan, decided by Hill and Brett, JJ., on the 4th August 1902. 108 of the Code of Civil Procedure. The view we take is in accordance with that taken by this Court iu the case of Mirsawaran v. Fairanan Khutan, decided by Hill and Brett, JJ., on the 4th August 1902. The rule will accordingly be discharged. We make no order as to costs.