Krishnaswamier vs Swaminadhier and Others

A preliminary objection is raised on Sivagami Achi v. Subramania Iyer ILR (1903) M. 259 on the ground that the order under consideration is

an order made u/s 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 u/s 622 of the C.P.C. in a proper case - and we think this a proper case.

The Subordinate Judge has expressly departed from his predecessor''s order made u/s 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 u/s 89. We do not agree.

The order of the Subordinate Judge directs that the 1st 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.

The decision in Sivagami Achi v. Subramania Iyer ILR (1903) M. 259 proceeds on the ground that the powers exercised u/s 287 of the CPC

are ministerial and not judicial, and the Subordinate Judge having made an order modifying his predecessor''s order, which he had no power to

make, has acted with material irregularity in the exercise of his jurisdiction. He has done more than direct the order in which the property is to be

sold : he has directed the order m which the shares of the judgment-debtors are to be sold, and so has perhaps altered the respective liabilities

imposed on the judgment-debtors by the decree.

The decree, as we understand it, gives the decree-holder a charge on the whole property to the amount of Rs. 48,000 or so, and a charge on an

undivided two-thirds part of the property for a further sum, and on an undivided one-third for a still further sum. We have not been referred to any

authority in support of the contention that the mortgagee is entitled to divide his security into undivided thirds and to say "" I will sell one undivided

third for the whole, and if that is not enough I will sell another undivided third for the balance, and if necessary the remaining undivided third.

He must take his security as the decree gives it to him, and though the Court may, of course, divide the property into lots so that no more than is

necessary may be sold, these lots will not be undivided shares of the property.

There is no question here of enforcing the claims of a decree-holder against the personal liability of joint debtors; here we have simply a charge

on the whole property for one sum, and on a part of the property for further sums, and the only order which in the circumstances of the case can,

we think, properly be made is an order to sell so much of the property as is necessary for the sum for which the whole is liable, and then to

proceed to sell so much as is necessary of undivided shares of the unsold property for the sums for which those shares are liable. We have heard

argument today on the inapplicability of Section 622 to the matter in question, but we think that section is properly applicable. The order made is a

judicial order not warranted by the section under which it purported to be made, and it is at least doubtful if the petitioner has any remedy u/s 311

of the C.P.C.

We set aside the order and direct resettlement of the sale proclamation in the light of the above remarks. We allow no costs as the application is

made in the guise of an appeal which we think is inadmissible.