(LALA) NATHU LAL Vs. SHRI MATI YASHODHA DEVI

JUDGEMENT

(1.) This is headed as an execution first appeal. The facts which have led to this appeal may be stated as follows: A final mortgage decree for about Rs. 1,400 was passed on 25 February 1929. An application for execution of decree by sale of the hypothecated properties was submitted on 22 April, 1929, and on that application notices under Order 21, Rule 66, were issued to the judgment-debtor. After some adjournments, objections under Order 21, Rule 66, were filed by the judgment-debtor on 22 July, 1929. The effect of the objections was that the value of the properties as estimated by the decree-holder was inadequate and that the properties should be sold in separate lots. These objections came up for hearing on 26 October 1929 when the judgment-debtor's counsel was not present; nor was he himself present, and his witnesses were also absent. The Court therefore dismissed the objections for default, with costs, and the present appeal is directed against this order dismissing the objections in default.

(2.) A preliminary objection has been taken on behalf of the respondent to the effect that no appeal lies. We are of the opinion that this preliminary objection is well founded. The contention that has been advanced on behalf of the appellant is that a Court, when it decides objections under Order 21, Rule 66, is proceeding under Section 47, Civil P.C., and therefore under Section 2 of the same Code such an order is a decree and is appealable as a matter of right. It is true that the words of Section 47, Civil P.C., are very wide and, if they were taken in their literal sense, they might cover every order of an interlocutory nature that may be passed in execution proceedings, but it is obvious that the intention of the legislature could not have been that every such order should be appealable as a decree. It is only those orders which conclusively determine the rights and liabilities of the parties with reference to the reliefs granted by the decree that can be said to be appealable within the meaning of Section 2, Civil P.C. If any other view ware taken, the result would be that the execution proceedings could be estopped almost at any stage by the judgment-debtor going up in appeal against orders which are more or less of an interlocutory character. The main contention of the judgment-debtor in the present case was that the value which was put upon the properties by the decree-holder as an estimated value was an incorrect value, and the Court was asked to put a proper valuation in the sale proclamation. Such a valuation can never possibly be said to be final in any sense of the term.

(3.) It can only serve as a guide to the prospective purchasers who can form their independent opinion in the matter also. If the Court somehow or other fixes an inadequate value and by reason of that fact the judgment-debtor is materially prejudiced at the time of the sale, then it would always be open to him later on under Order 21, Rule 90, to attack the sale on that ground. Order 21, consists of several rules and, if the contention of the appellant were allowed then every order passed under any of these rules would be a decree, because in one sense or another it relates to execution, satisfaction or discharge of the decree, but it is obvious that some of these orders are not decrees, because a specific provision is made for certain appeals as from orders. For instance, in Order 43, Rule 1, it is stated that an order under Rule 34, under Rule 72 and under Rule 92 would be appealable as an order. Therefore, it is clear that every order under Order 21, is not a decree. Almost every High Court in India has come to the same conclusion. It has been stated: in several cases that an order under Order 21, Rule 66, is of an administrative nature and not of a judicial character: see the case of Deoki Nandan Singhh V/s. Bansi Singh [1912] 10 I.C. 371. In Madras there are a long series of cases which have arrived at the same conclusion: see the case of Sivagami Achi V/s. Subrahmania Ayyar [1904] 27 Mad. 259 and the case of Meenakashisundram Pillai V/s. Chohka Linga Pathan A.I.R. 1929 Mad. 506, where the entire case law on the subject has been reviewed. In the case of Krishnarao Ambadas V/s. Krishnarao Baghunath A.I.R. 1928 Bom. 245, the Bombay High Court has also taken the same view. A Special Bench of the Patna High Court in the case of Mohit Narain Jha V/s. Thankan Jha A.I.R. 1928 Pat. 500, has also accepted the same view. Our own High Court in the cases of Ajudhia Prasad V/s. Gopi Nath [1917] 39 All. 415 and Alimuddin V/s. Gobind Prasad , has come to the same conclusion.