ARUKAPALLI NARASIMHA RAO Vs. ARUMILLI SUBBARAYUDU

JUDGEMENT

(1.) A.A. A.O. No. 17 of 1925 : This is an appeal against the appellate order of the Subordinate Judge directing the sale of mortgage property in a certain particular order. By this order he altered the order of the District Munsif who had directed the property to be sold in a different order. The first contention raised in this second appeal is that no appeal lay to the Subordinate Judge as the District Munsif's order was one passed under Order 21, Rule 66. This rule corresponds to Section 287 of the Civil Procedure Code of 1882 and it was held by a Full Bench of this Court in Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.) that proceedings under that section are of an administrative and not a judicial character and that therefore no appeal would lie from a decision thereunder. The facts concerned in that reference and the Full Bench agreed in the reasons given in the order of reference were that orders had been passed fixing the market value of the property, the place of sale, the lots in which it was to be sold and the amount of the mortgage money and on these facts it was held that no appeal would lie against an order under Section 287. That case dissented from the case in Ganga Prasad V/s. Raj Coomar Singh (1903) I.L.R. 30 C. 617 and a prior Madras decision in Sivaswami Naicker V/s. Ratnaswami Naicker (1900) I.L.R. 23 M. 568 : 10 M.L.J. 314 and since that case was decided, the legislature has altered the Code to a certain extent. Rule 66 of Order 21 is the new corresponding section, and in the new Code there is a provision that before a proclamation is drawn up notice shall be given to the decree- holder and the judgment-debtor. This looks as if attention had been paid to the difference of opinion between the Calcutta and the Madras High Courts and that it was thought fit to enter this provision which is in effect a provision to enable the parties to be heard before a decision is arrived at. It certainly looks as if the legislature intended to constitute such decisions as being of a judicial nature, as also the fact that the old Section 287, which is relied on in Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.) has been altogether removed. It is not necessary here, therefore, to discuss the Full Bench decision, by which we would be bound if the law were still the same. Since the passing of the new Code in 1908 there have been two decisions of this Court on this question [Mangayya V/s. Sriramulu and Vedavyasa Aiyar V/s. The Madura Hindu Labha Nidhi, Ltd. ]. In both these cases, which are analogous to the present one, it was held that an appeal lay because the order passed was one which came under the provisions of Section 47 of the Code. It is not, however, every order under Rule 66 that would be appealable, because no right of appeal is specially given against orders under that rule, but if any such order is passed such as would come under Section 47, there is no reason why effect should not be given to the provision that all orders under Section 47 are appealable. In the present case there is a question at issue between the purchaser who has been subrogated to the rights of the prior mortgagee and the mortgagor and that question at issue relates to the sale of their respective properties and may have a very important consequence to the parties. It is certainly a question which relates to the execution of the decree, and it arises between the parties to that decree. It would therefore come under Sec. 47 and it would not be right to deny the parties their ordinary right of appeal in such a matter. There is one case to the contrary Lanka Rama Naidu V/s. Lanka Ramakrishna Naidu (1923) 46 M.L.J. 192 but that expressly differentiates the case in Vedaiiyasa Aiyar V/s. The Madura Hindu Labha Nidhi, Ltd. , and consequently when it is read as applying only to its own facts it is not really an authority against the view we now take.

(2.) The question whether Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.) is still good law has been considered in Kaveribai Ammal V/s. Mehta and Sons (1923) 46 M.L.J. 71 and without entering deeply into the question the learned Judges have expressed an opinion that in view of the change in the law it may require re-consideration. As the circumstances of this case are different and there is authority to support us, we do not think it is necessary to refer the question to a Full Bench.

(3.) Coming to the merits of the case, it is argued that because the relief which the 4th defendant has now obtained was asked for in the suit itself and not granted, it was not open to the Lower Courts to grant him the relief in execution. The point has been expressly decided in Raghavachariar V/s. Krishna Reddi (1923) 46 M.L.J. 32 and we see no reason for not accepting that authority. On the merits of the case the Lower Appellate Court's decision is binding, as the order has been passed in the exercise of its discretion and it has not been shown that that discretion has not been exercised judicially. The second appeal therefore fails and is dismissed with costs of the 4 defendant.