MEENAKSHISUNDARAM PILLAI Vs. CHOKKALINGA PATHAN

JUDGEMENT

(1.) This Civil Miscellaneous Appeal is against the order of the Lower Court in a matter in execution. That Court has directed that in a sale proclamation certain properties be sold in certain lots and has fixed the market value of such lots at certain figures and also the upset prices for each lot. The appellant objects that the lots are too large and the figures of market value too small and appeals on these grounds.

(2.) The preliminary objection is taken by the respondent that no appeal lies. The order of the Lower Court is admittedly passed under Order 21, Rule 66 (2) (e), Civil Procedure Code, which directs the Court to set out in the sale proclamation as fairly and accurately as possible such information as it considers material for the purchasers to know. Orders under Rule 66 are not appealable as such, and an appeal will lie only if the order can be brought within Section 47, Civil Procedure Code, as an order deciding a question between the parties to the suit "relating to the execution of the decree." This language is in its terms very wide and might be easily construed to cover every kind of order passed in execution proceedings; but clearly that was not the intention of the legislature. If that were the test, any order passed under Order 21 would be appealable and it would be unnecessary and misleading to state under Order 43 that appeals will lie from Orders under Rules 34, 72 and 92, of that order. In order to find out the test which Courts have in practice applied in deciding whether an appeal lies from an order under Rule 66 by force of Section 47 it is necessary to consider some of the reported rulings available.

(3.) The leading case for this Court is the Full Bench case in Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.). Under the old Section 287, corresponding to Order 21, Rule 66, it was laid down that none of the proceedings of a Court under Section 287 is an order within the meaning of Section 244, now Section 47, and appealable. In that very case one of the grounds of appeal was that the market value had been wrongly stated in the sale proclamation and another was an objection to the lots in which the Court had ordered the property to be sold. The Full Bench held that such proceedings are of an administrative character and not judicial. It is pointed out that the application of that decision to similar proceedings under the new Code of 1908 has been doubted by a Bench of this Court in Kavenbai Animal V/s. Metha & Sons (1923) 46 M.L.J. 71, the question there being the appealability of an order by a learned judge on the Original Side of the High Court refusing to alter the upset price in the sale proclamation. The actual decision however proceeded on a different footing, namely, that the order was not a judgment within Section 15 of the Letters Patent. It will be true therefore to say that the remarks therein as to the correctness of Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.) are themselves obiter. In a later very similar case reported in Tawker & Sons V/s. Harsook Doss Chonghull , the learned Chief Justice himself, who was a party to the Kaveribai Ammal v. Metha & Sons (1923) 46 M.L.J. 71, case, held that he was bound by the decision in Sivagami Achi V/s. Subramania Aiyar (1903) I.L.R. 27 M. 259 : 14 M.L.J. 57 (F.B.). The question whether the slightly altered wording" of Rule 66 compared with the old Section 287 really affects the application of the Full Bench decision was considered by a Bench of this Court in Lanka Rama Naidu V/s. Lanka Ramakrishna Naidu (1923) 46 M.L.J. 192, and answered in the negative. No doubt it has been held that a decision as to the order in which property is to be put up for sale, may be appealable if it affects the rights of co-defendants inter se, for example, in a case of execution of a decree on a mortgage where the interests of the owners of the items of mortgaged property will be seriously affected by the order in which the properties are sold. This was the position in Vedaviasa Aiyar V/s. The Madura Hindu Labha Nidhi, Ltd. , where it was held that such an order is not purely administrative but one affecting substantial rights, and therefore that the Full Bench ruling will not apply. The ruling in Narasimha Rao v. Subbarayudu to which one of us was a. party is on a similar position, and to the same effect. In Thiruvengadasami Aiyangar V/s. Govindasami Odayar (1927) I.L.R. 51 M. 655 : 55 M.L.J. 363, it was held that an executing Court is under no obligation to determine market values for the purpose of a sale proclamation, but that if it does its decision is a judicial act. The decision on the latter point was not necessary for the purpose of the case since the complaint before the Court was not that the Lower Court had wrongly determined the market value but that it had not determined it at all. Perhaps in consequence the attention of the Bench was not drawn to the other rulings of this Court quoted above, except to Narasimha Rao V/s. Subbarayudu In Rukmai Ammal V/s. Palaniappa Chettiar 1928 M.W.N. 569 another Bench has again laid down that orders under Rule 66 are administrative and not judicial.