SIVASWAMI NAICKER Vs. RAMASWAMI NAICKER

JUDGEMENT

(1.) A preliminary objection has been raised to the hearing of this appeal on the ground that no appeal lies. The order appealed against was made on an application by the defendants that an application for execution put in by the plaintiff should be dismissed. In substance the application was for an order that the sale under an execution should not be proceeded with on the ground that in the sale proclamation the value of the property had been under-estimated. The Subordinate fudge dismissed the defendant's application on the ground that the fact that the value of the property had been under-estimated was immaterial. The effect of the Subordinate Judge's order would be that the sale would be proceeded with notwithstanding the fact of under valuation. We think the question raised by the defendant's application was a question arising between the parties to the suit in which the decree was passed, and relating to the execution of the decree within the meaning of Section 244 of the Civil Procedure Code. It has been urged on behalf of the decree-holder (the respondent,) that having regard to the definition of " decree" contained in Section 2 of the Code, "an order determining any question mentioned or referred to in Section 244, but not specified in Section 588 " is not an appealable order unless it amounts to a " formal expression of an adjudication upon a right claimed." Even assuming that the order of the Subordinate Judge is not in substance a formal expression of an adjudication upon a right claimed, it appears to us that so long as the order determines a question referred to in Section 244, an appeal lies from such order. The judgment of the Calcutta High Court in Nihal Ghand V/s. Chuttoo Lal I.L.R. 20 B. 288, no doubt supports the contention now put forward by the decree-holder, but we are not prepared to place the same construction on the words of the definition of "decree" in Section 2 of the Code as the Calcutta High Court seems prepared to adopt.. We are, therefore, thrown back on Section 244, and we have to say whether the question raised before the Subordinate Judge related to the execution. Without attempting to lay down any general rule applicable to all orders passed in execution proceedings, it is sufficient to say that the order was made with reference to a question which related to the execution, and, consequently, the order made is appealable. We accordingly overrule preliminary objection.

(2.) On the merits, we think the Subordinate Judge is clearly wrong in his view that the undervaluation was immaterial. The Law is now settled by Privy Council decision in Saadatmand Khan V/s. Phul Kuar I.L.R. 23 C. 425.

(3.) We allow the appeal with costs. We reverse the order of the Subordinate Judge, and we direct him to ascertain as far as possible the value of the property and amend the sale proclamation accordingly.