Lanka Rama Naidu vs Lanka Ramakrishna Naidu

This is an appeal under Sections 47 and 96 of the CPC against an order made by the District Judge directing the sale of two items of properties,

items 1 and 2, according"" to the order in which they were advertised for sale in the sale proclamation, that is, directing item 1 to be sold first and

then item 2. The judgment-debtor, the appellant before us, had, without notice to the decree-holder, got an order from the District Judge that item

2 should be sold first and not item 1. This was an ex parte order which, on the decree-holder coming to know of it, was sought by him to be

altered so that the sale might take place according to the order in the sale proclamation itself. No doubt, the decree-holder stated as his reason in

his application that item 2 was his own property and was wrongly included in the decree as chargeable with the decree amount. The District Judge

has not gone into that question at all or given any finding about it. He set aside his original ex parte order and directed that the property be sold

according to the sale proclamation, that is, item 1 first.

The judgment-debtor appeals against that order, and a preliminary objection has been taken by the learned vakil for the decree-holder that no

appeal lies and reliance has been placed by him on Sivagaori Achi v. Subramani Aiyar 14 MLJ 57 (FB). This case before us certainly seems to be

covered by that ruling as the order of the District Judge was merely one settling one of the terms of the sale proclamation, namely, the order in

which the property was to be sold. It was held in the Full Bench that the District Judge acted not judicially but only administratively when he settled

the sale proclamation and therefore, the order in that case was not one which came within Section 244 of the old Code corresponding to Section

47 of the present Code. We are bound by that ruling unless we can agree with the argument of the appellant that the alteration of the wording of

Order 21, Rule 66 of the new Code which corresponds to Section 287 of the old Code has altered the position altogether. The only additions in

the new Code which have been pointed out are that power is now given (1) to give notice to the judgment-debtor and the decree-holder to be

present when the terms of the sale proclamation are settled and (2) to insist upon every application for an order for sale under the rule to be

accompanied by a statement signed and verified in the manner prescribed for the signing and verification of pleadings and containing so far as they

are known to or can be ascertained by the person making the verification, the matters required by Sub-rule (2) to be specified in the proclamation,

namely, as to the revenue assessed upon the property, as to the incumbrance to which the property is liable, as to the amount for the recovery of

which the sale is ordered, and other things which the Court considers material. It is argued that these provisions show that the Court is acting

judicially and it is also urged that the omission of Section 288 supports that argument. It seems to us that these two additions do not alter the

position at all. They simply give power to the Court to have the parties before it in settling the sale proclamation and then-affidavits so that it may

get the help of the parties in settling it. The Full Bench in Sivagauri Achi v. Subramania Aiyar 14 MLJ 57 (FB) adduced as the most important

reason for holding that a Judge, acting u/s 287, was acting administratively and not judicially that special power was given to him under that section

to summon a person when the Judge thought it necessary to do so and examine him in respect of matters on which information was wanted by the

Court and to require him to produce documents. The argument of the Full Bench was that, if the Court was acting judicially in the matter, such

power need not have been expressly given but the Court would have the power to do so under its general powers without an express section

provided for the purpose. That provision is left in tact in the new Code and is not altered and the argument therefore applies to the new Code. No

doubt, the referring Judges in the Full Bench case did allude to the fact that Section 288 also corroborated their opinion, for it was argued that a

special protection for a Judge need not have been given by a special section of the Code if that officer was acting as a Judge, as he would be

protected under the Act for the protection of the judicial Officer. That argument no doubt will not now apply because the provision has been

omitted but we think that the omission of the provision does not lead to any conclusion the Court now acts in a judicial capacity rather than in an

administrative capacity in settling the terms of the sale proclamation. 6. 288 was really put in by way of abundant caution and, as it was found to be

unnecessary it has been deleted and not because of any change in the law. We think that the ruling in Sivagauri Achi v. Subramanya Aiyar 14 MLJ

57 (FB) still governs the case and that no appeal can be allowed in a matter like the one before us where the Court merely settles the order in

which the properties are to be sold. Our attention was drawn to a decision in Thoppai Vedaviasa Aiyar Vs. The Madura Hindu Labha Nidhi Co.,

Ltd. and Others, , but that case is distinguishable from the present case, for there their Lordships were able to come to the conclusion on the facts

of that case, that what was decided in that case by the lower Court was not the order in which the properties were to be sold but whether the

properties of one mortgagee or of another mortgagee should be sold first. On that view they held that the order was one affecting the rights of two

defendants inter se and, therefore it was a matter which would come u/s 47 of the Code. Whether this is a right view or not we are not called upon

to say for here no such question arises. This is purely a matter of settling the order in which the sale is to take place. 27 M .259 has been followed

and applied even to cases from the original side by the learned Chief Justice and one of us in T.R. Tawker and Sons Vs. Harsookdoss

Choughmull, . In these circumstances, we hold that no appeal lies in the present case and dismiss it.

Under these circumstances, we do not allow any costs to either side in this appeal.