Tummalapalli Mangayya vs Tummalapalli Sriramulu and Another

The question in this case relates to the construction of Section 47 of the Civil Procedure Code. The decree under execution is one for sale of

four items of property mortgaged to the decree-holder. The 5th defendant in the suit had a subsequent charge on items 1, 2 and 4 while the 10th

defendant had purchased item 3 after the decree-holder''s mortgage. The 5th defendant obtained an order from the executing Court that the 3rd

item should be sold first and that items 1, 2 and 4 should be brought to sale only if the proceeds of the sale of item $ proved to be insufficient to

discharge the decree. The order purported to be passed under Order 21 Rule 66 C.P.C. relating to the settlement of the proclamation of sale.

Against that order the 10th defendant preferred an appeal contending that the first Court''s order fell really within the provision of Section 47

C.P.C. The Subordinate Judge dismissed the appeal on the ground that the order was passed under Order 21 Rule 66. We are of opinion that the

dismissal of the appeal cannot be supported. It is hardly necessary ''to observe that in deciding whether an appeal is competent the substance of

the order should be looked at, and that the provision of law quoted by the Court passing the order is not decisive. See Ram Narain v. Badri

Pershad ILR (1904) C. 737. The question therefore is was the first Court''s order one relating to the execution of the decree between the parties

to the suit. The 10th defendant''s complaint was that the 3rd item should not be sold before items 1, 2 and 4. The question was therefore one

relating to the mode in which the decree should be executed. It was also one which affected the decree-holder''s rights in execution although the

5th and 10th defendants were the parties primarily interested in the settlement of the question. Apart from this circumstance, the nature of the

decree has to be borne in mind. In a suit for sale on a mortgage the rights of all parties interested in the mortgaged property including subsequent

incumbrances and purchasers have to be adjusted. If their rights conflict with each other, it is open to the Court to make appropriate provisions in

the decree to determine their respective rights. It is unnecessary to consider how far the Court should or may do so, in any particular case. In t he

present case, the Court which passed the decree did not determine the respective rights of the 5th and 10th defendants. But in execution it passed

an order which prejudicially affected the 10th defendant. Although the 5th and 10th defendants were both arrayed as party defendants, they were

arrayed against each other so far as the question whether any of the items of the mortgaged properties should be first sold, was concerned. The

expression"" between the parties to the suit"" no doubt imports ""between parties opposed to each other in the suit,"" but doe? not necessarily mean

between parties who are plaintiff and defendant respectively in the suit. In a partition suit, for instance, parties who are co-defendants are often

arrayed a against each other. In such a case a question between them relating to the execution of the decree would fall within Section 47 C.P.C.

The same view must be held in this case also. We reverse the order of the Subordinate Judge and remand the appeal for fresh disposal according

to law. The 1st respondent will pay the appellants, costs of this second appeal.