RUKMANI AMMAL Vs. TSPLPALANIAPPA CHETTIAR

JUDGEMENT

(1.) This Letters Patent appeal arises out of an order refusing stay in C.M.A. 108 of 1928 filed against the order of the Subordinate Judge in execution under Order 21, Rule 66, while settling the sale proclamation. Various contentions were raised when the sale proclamation was fixed One was as regards the value of the property and the other was as regards certain encumbranees. There were two encumbrances; one was a mortgage to one Subramama Sastri and the other was the security given to the District Court i the Tanjore Palace Estate Suit, where certain parties withdrew money for Court. As regards the security, the contention on one side was that the Tanjore Palace Suit encumbrances did not subsist and as regards Subramani Sastri's mortgage, the contention was that it was not for a cash consideration but as a charge for some running account. It was also contended that there was no mortgage amount due to him and that Subramania Sastri an, the plaintiff consented to sell the property free of encumbrances. This question had to be decided in fixing the proclamation of sale. The Subordinate Judge said that the Tanjore Palace Security was not discharged because then was no order cancelling the security bond. He also said that, as the consent of encumbrances had not been obtained he could not in this suit make the property free of encumbrances, and he in determining the value of the encumbrances assumed it to be only half the amount alleged. This was necessary in his opinion in order to ascertain what the upset price ought to be, and he fixed the upset price having regard to this method of calculation. He also stated that the contentions of both the parties should be mentioned in the sale proclamation so that the purchaser might be in possession of all the material facts which would guide him in purchasing the property. He did not decide any question, because the fact that he directed the notification of what he parties contended rather suggests that what he did was to fix the method of ascertaining what the upset price ought to be, leaving the other questions to the discretion of the purchaser. Again it seems to me that in order to fix the upset price it is not necessary to find oat and decide the market value of the property. Very often the upset price is the price at which the auctioneer has to begin and the Judge is not bound to close the sale because the bid exceeds or is a little higher than the upset price. In the present case the fact that the Judge was of opinion that it was unnecessary to find out the market value of the property rather suggests that he took the amount fixed in the previous proclamation only as a tentative price at the beginning and he did not determine that the market value of the property was the value which should be fixed in the sale proclamation.

(2.) On these facts the question is whether a civil miscellaneous appeal would lie and if the civil miscellaneous appeal would not lie, it is clear that the Letters Patent appeal also would not lie. Order 21, Rule 66, corresponds to Section 287 of the old Civil P.C. with certain modifications. The chief modification is that notice should be given to both parties. It has been held in Sivagami Achi V/s. Subramania Ayyar [1904] 27 Mad. 259 by a Full Bench of this Court that an order under Section 287 is an administrative order and an appeal would not lie against such an order. The question again arose under Order 21, Rule 66, and it was held by a Bench of this Court in Rama Naidu V/s. Rama Krishna Naidu A.I.R. 1924 Mad. 527 that the change in the new Code does not alter the character of the proceedings and though the Judge settles the proclamation it is still an administrative order, In Ramanathan Chettiar V/s. Venkatachallam Chettiar, A.I.R. 1923 Mad. 619 it was held that an order fixing the upset price is not appealable as it is an administrative and not a judicial order. In this connexion I may also refer to Tawker & Sons V/s. Harsookdoss Choughmull A.I.R. 1924 Mad. 886 Ramanadhan Chetty V/s. Somasundara Chettiar [1917] M.W.N. 141 and Avudainayappa Pillai V/s. Sundaranandam Pillai A.I.R. 1924 Mad. 767. It is no doubt true that in Kaveri Bai Ammal V/s. Mehta & Sons A.I.R. 1924 Mad. 234 Schwabe, C.J., and Coleridge, J., were of opinion that the alteration in Order 21. Rule 66, was a circumstance which in their opinion rendered the authority of Sivagami Achi V/s. Subramania Ayyar [1904] 27 Mad. 259 doubtful and both the learned Judges were of opinion that, if necessary, they would refer the question to a Full Bench. As the decision proceeded upon Cl.15, Letters Patent, they did not think a reference necessary, In Narasimha Rao V/s. Subbarayudu A.I.R. 1926 Mad. 834 Phillips and Madhavan Nair, JJ., were inclined to take the same view as was taken by Schwabe, C.J., and Coleridge J. I think that so far as Order 21, Rule 66, requires decision as to matters which are purely administrative in nature such as fixing the upset price and the details of the sale proclamation, the matter is administrative. But where the Judge in addition to deciding such matters insetting the sale proclamation decides questions which would come under Section 47, he cannot by merely purporting to act under Order 21, Rule 66, bar an appeal. There is no appeal under the Civil Procedure Code of 1908 against orders passed under Order 21, E.66, so that from the point of view as to whether an appeal lies, it does not matter if the orders passed under the section are judicial or administrative. I think the real question in each case is what is in substance the order passed by the] Judge, whether the order purporting to be under Order 21, Rule 66. really decides questions in execution so as to bring the ease under Section 47 or any other " applicable rule of the Code. I may in this connexion refer to Sadagopa Ayyangar V/s. Sellammal A.I.R. 1922 Mad. 510 and Basanta Kumar V/s. Baikunta Nath A.I.R. 1926 Cal. 610. In the present case it is difficult to see how the order passed can be brought under Section 47. I have already set out what in effect was the order passed by the Subordinate Judge. He in fact decided no question settling the rights of the parties. All he did was to fix the upset price and to deal with the various objections which all the parties raised to the upset price. In these circumstances, I think the case comes clearly within the principle of Sivagami Achi v. Subramania Ayyar [1904] 27 Mad. 259 where it was held that an administrative order as such could not be appealed against. It has been argued that the Subordinate Judge has dealt with the objection that there can be no sale be-cause the attachment has fallen through. This was an objection raised while the Judge was settling the proclamation. He has not dealt with it in his order evidently because the matter was not one which he could deal with under Order 21, Rule 66. I think the proper course would be for the petitioner, if so advised, to put in an application, objecting to the further execution of the decree or the sale because of there being no attachment and on that an order can be passed from which there may or may not be a right of appeal. It is also urged that the sale proclamation does not carry out the terms of the order passed by the Judge in that it does not note the contentions of both the parties so as to enable the purchaser to be in possession of the necessary information. It is a matter which, if brought to the notice of the Court can be easily remedied by bringing the proclamation in conformity with the order passed by the learned Judge. I think if a fresh proclamation is issued this defect can easily be remedied. But it does not in any way affect the order passed by the Subordinate Judge under Rule 66, which is nothing more than an administrative order. I do not think the civil miscellaneous appeal lies and so it should be dismissed. It follows that the Letters Patent appeal should also be dismissed as the original civil miscellaneous appeal was incompetent. There will be a fresh proclamation. One set of costs for all the three civil miscellaneous appeal, Letters Patent appeal and the civil miscellaneous petition. Reilly, J.

(3.) Whether an order made under Rule 66, Order 21, of the Code, as it now stands, is purely an administrative order or has anything judicial in its nature, it is clear that there is no appeal under the Code against an order made under Rule 66, as such. But I agree that, if a Judge under the guise of making an order under that rule, or in the course of proceedings under that rule, makes an order which comes within the scope of Section 47 of the Code, then there is an appeal against his order. Now in this case the learned Subordinate Judge has fixed certain upset prices. His order does not purport to determine, or to give his estimate of, the market value of the property. He has fixed certain prices which he describes as the upset prices and which appear to be the prices at which the auctioneer is to start the bids, and he had mentioned that, if those prices are not reached, they will have to be lowered on a future occasion. That I think makes it quite clear that the upset prices he mentions were not fixed by him as representing, any definite estimate of the market-value of the property. It was his duty under Rule 66 to give in the proclamation everything which he considered material for a purchaser to know in order to judge of the nature and value of the property.