Grover, J. - (1.) THIS is an appeal against an order of the District Judge dismissing the appeal filed before him on the ground that the order appealed against was not appealable.
(2.) IN execution of a decree against the judgment -debtor certain property had been attached and ordered to be sold. A notice was issued under Order XXI, Rule 66(2) of the Code of Civil Procedure for the purpose of effecting proclamation, The judgment -debtor objected to the form of the proclamation on the ground that certain incumbrances had not been correctly stated. These objections were over ruled and the order of the Court below was - The attached agricultural land to the extent of the judgment -debtor's share is to be auctioned subject to the charge of the mortgage money. So far as the question whether an appeal lay against such an order is concerned, I am in agreement with the view of the learned District Judge that such an order is not appealable, Banerjee J., who was a member of the Full Bench, in jogodishury Debea v. Kailash Chundra Lahiry, I. L. R. 24 Cal. 725 has observed at page 739 that an order in execution proceedings can come under Section 244 only (present section being 47 of the Code) when it determines some question relating to the rights and liabilities of parties with reference to the relief granted by the decree not when, as in this case, it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way. There is a full discussion on this subject in Mulla's Code of Civil Procedure at page 870. This is what is stated there: - Now an order in execution proceedings may be a final order, that is, it may conclusively determine the rights of parties or it may be interlocutory. In the former case, the order operates as a decree and is appealable as such (Section 2 (2)), but not in the latter case. According to Mulla, the question in each case is whether a particular order made under Order XXI, Rule 66 conclusively determines the rights of the parties or not. There is no question of any conclusive determination of the rights of the parties in present case. All that had to be done according to the express provisions of Order XXI, Rule 66 was that the proclamation had to specify as fairly and accurately as possible the incumbrances to which the property to be sold was liable. The amount of the incumbrances had to be mentioned. If any incumbrance were disputed, that fact could be stated. This had not been done but that would not make the order which was appealed against before the District Judge such an order that it determined the rights of the parties.
(3.) AS the matter has come before me and as the order in question is not appealable, I consider that it is a fit case in which I should interfere under Section 115 of the Code of Civil Procedure. The executing Court should in the sale proclamation mention the incumbrances in the manner indicated by me above. I would, therefore, set aside the order of the executing Court and make a direction accordingly.;