SIVAGAMI ACHI Vs. SUBRAMANIA AIYAR

JUDGEMENT

(1.) Our answer to the reference is that in our opinion none of the proceedings of a court under Section 287, C.P.C. and the rules framed thereunder in relation to the proclamation of sale is an " order" within Section 244 and as such appealable as a " decree".

(2.) We concur in the reasons given in the order of reference and we may add that the view that the proceedings in themselves under Section 287 are of an administrative and not a judicial character is further supported by the fact that special provision is made in Section 287 to summon witnesses and. make enquiry into the matters referred to in the section, a provision which would be superfluous if the proceedings were judicialWe are therefore constrained to dissent from the decisions in the cases reported in I.L.R., 23 M. 568 and 30 C. C17.

(3.) To allow an appeal and, as a consequence, a second appeal, in regard to proceedings under Section 287 as if they were orders made under Section 244 and therefore decrees, would enormously increase the difficulties and delays which even now occur in obtaining the execution of decrees and that without any counter-balancing advantages. For if the sale is eventually held and a material irregularity in publishing or conducting it is proved and loss has thereby been caused to the objector he can get the sale set aside; whereas even if there has been an irregularity but no loss has resulted it is contrary to the policy of the code (Section 311) to interfere with the sale.