A RAMALINGASWAMI NAICKER Vs. VENKITASWAMI NAICKER

JUDGEMENT

(1.) Two points have been argued by Mr. Thyagarajan, the learned advocate for the appellants in this second appeal. First he contends that there was no appeal to the lower appellate Court against the order of the District Munsif in E. P. No. 76 of 1944 dated 7th August 1945; secondly he argues that the learned District Judge erred in law in directing the sale of the properties in the order in which he has directed them to be sold. On the first-point I agree with the contention of the learned advocate for the appellant to this extent namely that if there is an order of Court merely settling the terms of the sale proclamation which does not in any way determine or affect the rights of parties, then the order is not open to appeal. But, if in settling the terms of sale proclamation the rights of the judgment debtors inter se who are the owners of the equity of redemption are affected by the order of the Court, then that would be a matter relating to the execution, discharge or satisfaction of the decree and the decision of the Court would be open to appeal at the instance of the aggrieved party.

(2.) As regards the second point, the contention of the plaintiff-decree-holder in the Courts below and here is that certain items of the property mortgaged and directed to be sold under the mortgage decree have been sold for arrears of rent due on those items. He contends, therefore, that the Court should not hold out these properties as still being available for sale. The contention of the respondent is that these so-called rent sales were collusive transactions, the purchase having been effected in the name of the accountants and relations of the appellant. Whether this is a true story or not it is not possible to say on the evidence now placed before me. The plaintiff decree holder is, however, not injured or prejudiced in any way by the direction of the appellate Court that the items should be sold in the order in which they have been directed to be sold by the decree the direction will not be interfered with. If the items whose sale is objected to do not fetch any substantial price he is not aggrieved thereby because on his own showing, they are not liable to be sold. If, however, those items are sold and an appreciable price is fetched at the court sale he stands to benefit thereby because he will be getting a pro tanto discharge of his mortgage decree without subjecting himself to any liability for damages to the purchaser at the court sale. So, judged from any point of view, the order of the appellate Court is one that does not prejudice the decree-holder.

(3.) In these circumstances, I see no ground for interfering with the order of the lower appellate Court and I dismiss this civil miscellaneous second appeal with costs.