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Judgment
Walter Schwabe, C.J.—This is an interlocutory appeal from an order of Kumaraswamy Sastri, J., sitting on the Original Side refusing the
application by Judge''s summons to alter the price fixed as the upset price in the proclamation of sale, to alter the mode of selling a certain part of
the property into a sale in convenient lots instead of a sale as a whole, and to postpone the date of the sale.
The suit was a in rtgage suit. The preliminary decree gave what stems to be a short time of three months for redeeming. That time having
elapsed, no application having been made for extension of the time and no appeal having been taken, from the preliminary decree, a final decree
was passed ordering a sale. The Court then directed the sale on a certain day and in the ordinary way, under Order XXI, Rule 66, caused a
proclamation to be drawn up. Thereafter this summons was taken out and the learned Judge having dismissed it, this appeal is brought to this
Court; and the question is whether such an appeal lies.
Under the CPC then in existence, which is in many ways similar on this matter to the present Code, a Full Bench of this Court, in Sivagami Achi
v. Subrahmania Ayyar 27 M. 259 : 14 M.L.J. 57, held that the Court in exercising its powers settling the terms of the sale proclamation acts
ministerially and not judicially, and that, therefore, no appeal lies. I think it is true to say that, for the purpose of that decision, it was not necessary
so to hold; but, however that may be, that is a finding of a Full Bench. Speaking for myself, I have very great doubts as to whether it is a correct
finding or not, but it is a finding by which we are bound, provided there is nothing in the alteration in the Code to make it no longer applicable. On
that, an interesting argument has been addressed to us and I should myself desire to refer that question to a Full Bench, if I considered it necessary
to follow that case in order to decide the point before us, but I do not think it is. The question to be determined here must turn on the proper
interpretation of Clause 15 of the Letters Patent which says: ""We further ordain that an appeal shall lie from the judgment (not being an order of a
certain kind) of one Judge of this Court."" There is no doubt that those words give a right to appeal in respect of many kinds of orders, and the law,
so far as this Court is concerned, is to be found in the Full Bench decision in Tuljaram Row v. Alagappa Chettiar 8 Ind. Cas. 340 : 35 M. 1 :
(1910) M.W.N. 697 : 1910 21 M.L.J. 1, where a very large number of instances were given of orders, which were appealable and one or two
instances were given of orders which were not appealable and the Court came to the conclusion that the kind of order that was not appealable was
an order which was described as merely interlocutory. In my judgment, the order in this case was merely interlocutory. It does not finally dispose
of the rights of the parties at all. I should add that, in so far as it is not an application to extend the time for the purpose of allowing the amount of
the decree to be raised by mortgage or by private sale of such property, the Court of first instance by reason of the terms of Order XXI, Rule
83(3) was expressly forbidden to make such order, and on that ground the Court had no power to make such order and no appeal can lie from its
refusal to do so. So far as the question of granting further time is concerned, the power of the Court below to do so must be sought under Order
XXI, Rule 69 which says that the Court, in its discretion, may adjourn a sale to a specified day, and, in my view, the order in the exercise of that
discretion is an order of a merely interlocutory nature. I think the same applies to the question here whether there should be an alteration of the
terms of the sale proclamation by raising the upset price, and dividing the property into lots. The matter is so purely one of discretion of the lower
Court not affecting the final rights of the parties at all, that it ought to be treated as merely interlocutory.
On these grounds, the preliminary point succeeds and this appeal must be dismissed with costs.
Coleridge, J.
I agree. I should like to add that, in my opinion, Sivagami Achi v. Subrahmania Ayyar 27 M. 259 : 14 M.L.J. 57 needs to be reconsidered by a
Bull Bench as, in my opinion, the alteration of the Code was deliberate and was intended to take away the ministerial functions that were alleged to
be vested in the Court and distinctly made it a judicial function from which an appeal will lie.