S R SUBRAMANIA AIYAR Vs. LAKRISHNA IYER

JUDGEMENT

(1.) The respondent having attached the appellant's immoveable properties before judgment, obtained a decree for Rs. 2,224-12-0 against him and his mother on 28 January 1919. Afterwards he applied through E.P. No. 35 of 1924 for sale of the properties which were attached before judgment. In the interval two petitions for executing the same decree had been rejected owing to the execution petitioner's fault. The appellant filed C.M.P. No. 722 of 1924 on November 18 1924, asking (1) that the auction-sale fixed for November 24th, 1924, should be stopped, (2) that the whole proceedings in the pending E.P. R. No. 35 should be vacated, and (3) that E.P.R. No. 35 should be dismissed. The Subordinate Judge of Coimbatore refused these reliefs and dismissed the C.M.P. From that order the appellant has filed an appeal and a revision petition to the High Court on March 2nd, 1925. The sale took place on February 9th, 1925, and awaits the lower Court's order of confirmation under Order XXI, Rule 92, C.P.C. The appellant's Vakil contends that the attachment of the property ceased by virtue of Order XXI, Rule 57, upon the dismissal for default of the prior execution petitions, the attachment before judgment being good only until the first execution petition after the passing of the decree was dismissed Vide Meyappa Chettiar V/s. Chidambaram Chettiar 79 Ind. Cas. 144 : 46 M.L.J. 415 : 34 M.L.T. 118 : (1924) M.W.N. 392 : A.I.R. 1924 Mad. 494 : 47 M. 483, and that the sale of the property without a previous subsisting attachment was illegal.

(2.) In my opinion there is a short answer to this appeal and the accompanying revision petition. The sale having already taken place the judgment-debtor's remedy lies in applying under Rule 90, of Order XXI to have it set aside, and from the order to be passed by the Executing Court he will have a right of appeal to this Court under Order XLIII, Rule 1(j), C.P.C.

(3.) It is too late to stop the sale after it has taken place and at the same time it would be premature on the part of this Court to set aside the sale, the power to do so being vested in the first instance in the Executing Court. The appellant did not obtain an order from the High Court to stay the sale before it was concluded. We should not make a declaration or pronouncement of opinion as to the validity of a sale while proceedings for confirming or setting it aside are pending in the Court; below, and there is no room for our interfering otherwise with the course of the execution petition which will be finally disposed of only when final orders are passed under Rule 92 and when it is known to what extent the decree has been satisfied. The fact that there is no right of appeal provided in the C.P.C. against orders under Order XXI, Rules 64 and 66 for sale of property indicates that such orders are of an interlocutory nature. The appealability of an order for sale was raised in Namuna Bibi V/s. Roshun Meah 9 Ind. Cas. 558 : 38 C. 482 : 15 C.W.N. 428 : 13 C.L.J. 621 but not argued with assurance vide page 486. The learned Judges considered that an appeal lay under Section 47, C.P.C., as it was a question between the sale had been held, it does not appear that he made an attempt to have the sale set aside by the Sub-Judge under Section 47 as illegal for want of a fresh attachment upon this ground, which has not been considered in the Judge's order of November 29 1924, and the present appeal cannot be treated as an appeal against an order which the Sub Judge might have made, if such a contention had been put forward at the proper time. For these reasons, I consider that the only order we can make is to dismiss the appeal with costs. The revision petition being only an alternative remedy to the appeal is dismissed without costs. Madhavan Nair, J.