KRISHNASWAMIER Vs. SWAMINADHIER

JUDGEMENT

(1.) A preliminary objection is raised on Sivagami Achi V/s. Subramania Iyer (1903) I.L.R. 27 M. 259 on the ground that the order under consideration is an order made under Section 287 of the Civil Procedure Code. The order purports to be under that section, and it is difficult to say that the fact that the Subordinate Judge, by his order, does something which he is not empowered by the section to do, will make it an order under some other section, and so appealable. But though the order is not appealable, or rather because it is not appealable, we can treat the appeal as an application for revision under Section 622 of the C.P.C. in a proper case - and we think this a proper case.

(2.) The Subordinate Judge has expressly departed from his predecessor's order made under Section 89 of the Transfer of Property Act. By that order all the property was to be sold, and the question of lots into which it was to be divided and the order in which they, were to be sold was reserved for consideration when the proclamation should be settled. But this order the Subordinate Judge considers he may treat as a mere obiter dictum, unnecessary for the making of an order for sale under Section 89. We do not agree.

(3.) The order of the Subordinate Judge directs that the 1 defendant's undivided share be first sold, and then, if necessary, the shares of defendants Nos. 2 & 3. We may observe that all their shares have passed into the hands of the appellant by purchase in execution of another decree.