L RAMA NAIDU Vs. LRAMAKRISHNA NAIDU

JUDGEMENT

(1.) This is an appeal under Secs.47 and 96 of the Civil P. C., against an order made by the District Judge, directing the sale of two items of properties, items 1 and 2 according to the order in which they were advertised for sale in the sale proclamation, that is, directing item 1 to be sold first and then item 2. The Judgment-debtor, the appellant before us, had, without notice to the decree-holder, got an order from the District Judge that item 2 should be sold first and not item 1. This was an ex parte order, which, on the decree-holder coming to know of it, .was sought by him to be altered, so that the sale might take place, according to the order in the sale proclamation itself. No doubt, the decree-holder stated as his reason in his application, that item 2 was his own property and was wrongly included in the decree, as chargeable with the decree amount. The District Judge has not gone into that question at all, or given any finding about it. He set aside his original ex parte order and directed that the property be sold according to the sale proclamation, that is item 1 first.

(2.) The judgment-debtor appeals against that order and a preliminary objection has been taken by the learned vakil for the decree-holder that no appeal lies and reliance has been placed by him on Sivagami Achi V/s. Subrahmania Ayyar [1904] 27 Mad. 259. The case before us certainly seems to be covered by that ruling, as the order of the District Judge was merely one settling one of the terms of the sale proclamation, namely the order in which the properties were to be sold. It was held in the Full Bench that the District Judge acted not judicially but only administratively, when he settled the sale proclamation, and therefore, the order in that case was not one which came within Section 244 of the old Code, corresponding to Section 47 of the present Code. We are bound by that ruling, unless we can agree with the argument of the appellant that the alteration of the wording of Order 21, Rule 66 of the new Code, which corresponds to Section 287 of the old Code, has altered the position altogether. The only additions in the new Code, which have been pointed out) are that power is now given: (1) to give notice to the judgment-debtor and the decree-holder to be present when the terms of the sale proclamation are settled; and (2) to insist upon every application for an order for sale under the rule, to be accompanied by a statement signed and verified in the manner prescribed for the signing and verification of pleading and containing, so far as they are known to, or can be ascertained by, the person making the verification, the matters required by Sub-rule (2) to be specified in the proclamation; namely, as to the revenue assessed upon the property, as to the encumbrance to which the property is liable, as to the amount for the recovery of which the sale is ordered and other things which the Court considers material. It is argued that these provisions show that the Court is acting judicially and it is also urged that the omission of Section 288 supports that argument. It seems to us that these two additions do not alter the position at all. They simply give the power to the Court to have the parties before it, in settling the sale proclamation and their affidavits, so that it may get the consent of the parties in settling it. The Full Bench in Sivagami Achi v. Subrahmania Ayyar [1904] 27 Mad. 259 adduced, as the roost important reason for holding that a judge acting under Section 287 was acting administratively and not judicially, that special power was given to him under that section, to summon a person, when the judge thought it necessary to do so, and examine him. in respect of matters, on which information was wanted by the Court and to require him to produce documents. The argument of the Full Bench was that, if the Court was acting judicially in the matter, such power need not have been expressly given; but the Court would have the power to do so under its general powers, without an express Section provided for the purpose. That provision is left intact in the new Code and is not altered and the argument therefore applies to the new Code. No doubt, the referring judges in the Full Bench case did alude to the fact that Section 288 also corroborated their opinion; for it was argued that a special protection for a judge need not hare been given by a special provision of the Code, if that officer was acting as a judge, as he would be protected under the Act, for the protection of judicial officers. That argument, no doubt, will not now apply, because the provision has been omitted; but we think that the omission of the provision does not lead to any conclusion that the Court now acts in a judicial capacity, rather than in an administrative capacity, in settling the terms of the sale proclamation. Section 288 was really put in, by way of abundant caution and as it was found to be unnecessary, it has been deleted and not because of any change in the law. We think that the ruling in Sivagami Achi V/s. Subrahmania Ayyar [1904] 27 Mad. 259 still governs the case and that no appeal can be allowed, in a matter like the one before us where the Court merely settles the order, in which the properties are to be sold. Our attention was drawn to a decision in Vedaviasa Aiyar V/s. Madura Hindu Labha Nidhi Co. Ltd. 1924 Mad. 365, but that case is distinguishable from the present case for, there their Lordships were able to come to the conclusion on the facts of that case, that what was decided in that case by the Lower Court was not the order in which the properties were to be sold, but whether the properties of one mortgagee or of another mortgagee should be sold first. On that view, they held that the order was one affecting the rights of two defendants inter se and, therefore, it was a matter which could come under Section 47 of the Code. Whether this is a right view or not, we are not called upon to say, for here no such question arises. This is purely a matter of settling the order in which the sale is to take place. Sivagami Achi V/s. Subrahmania Ayyar [1904] 27 Mad. 259 has been followed and applied even to cases from the Original Side by the learned Chief Justice and on9 of His, in Tawker & Sons V/s. Harsookdass Choughmull 1924 Mad. 386. In these circumstances, we hold that no appeal lies in the present case and dismiss it.

(3.) Under the circumstances, we do not allow any costs to either side in this appeal.