- (1.) THIS petition for leave to appeal to the Supreme Court has been filed by the decree -holder in O.S. No. 84 of 1956 on the file of the Subordinate Judge of Madurai, a suit instituted by him against the respondents one of whom was a minor at the time of the passing of the decree. In pursuance of the decree, he brought the suit property for sale in E.P. No. 31 of 1960 and himself purchased it for Rs. 13,000. The first respondent in this petition who was a minor at the time of the proceedings sought to set aside the sale on the ground that though he had become a major by 26th June, 1961 no notice was taken to him and also on the. ground that several material irregularities had crept into the conduct of the sale on account of the fraud of the decree -holder which resulted in heavy loss to the minor in that the valuable property worth Rs. 60,000 was sold for Rs. 13,000. When this application out of which these proceedings arise, came before the learned Subordinate Judge, he declined to set aside the sale, as he was of opinion that the absence of notice of sale to the quondam minor would not render the sale illegal. He also found that the other objection namely that the intending bidders were prevented at the auction was not substantiated. The application of the judgment -debtor was therefore dismissed. Thereupon, the first respondent in the petition filed C.M.A. No. 280 of 1962 which came up for final disposal before a Division Bench to which one of us was a party. This Court then observed that the absence of notice of the sale to the appellant therein was certainly a material irregularity, that the question was whether by reason of that irregularity, substantial loss had been occasioned to the judgment -debtor and that there was no proper finding on that question by the learned Subordinate Judge. The petition to set aside the sale was therefore remitted back to Subordinate Judge for fresh enquiry and disposal. Now it is against that order, the decree -holder has filed the present petition for grant of leave to appeal to the Supreme Court.
(2.) LEARNED Counsel for the petitioner has contended that the value of the property would be more than Rs. 20,000 and that the proposed appeal to the Supreme Court involves a substantial question of law.
(3.) IN the counter -affidavit filed on behalf of the respondents, it is submitted that the petition is not maintainable, as the order to be appealed against is not a final order and that the rights of the parties have not been finally disposed of by the order of remand. The only question for consideration, therefore, is whether the petitioner is entitled to a certificate for appeal to the Supreme Court, at this stage. As already stated, the petition to set aside the sale has been remanded to the lower Court, for the purpose of finding out whether the property was sold for a low price, and whether by reason of that irregularity substantial loss has been occasioned to the judgment -debtor. The learned Subordinate Judge will have to hold an enquiry and dispose of the matter. Learned Counsel for the petitioner would contend that the observations of the learned Judges of this Court that the absence of notice of sale to the judgment -debtor was a material irregularity are final and that he would not have an opportunity to canvass that point. According to learned Counsel the substantial question of law that he would like to canvass before the Supreme Court would be that execution proceedings taken against a person who was a minor through his guardian would be valid, even though notice had not been sent directly to the minor after attaining majority, provided notice in the execution proceedings was served properly on the guardian.;