Muhammad Zakaria (Judgement-Debtor) v. Kishan Narain (Decree-Holder).

Sulaiman, J.:— The judgement of after setting forth the facts as above, thus proceeded:

A preliminary objection has been taken that no appeal lies. I am of opinion that this objection is well founded. Muhammad Hafiz was not a party to the execution proceedings. Neither the decree-holder nor the judgement-debtor admitted the validity of this prior mortgage. The contesting respondent intimated to the court that this mortgage should be notified. The order passed by the court was obviously under order XXI, rule 66, with a view to include in the proclamation of sale an incumbrance on the property. The validity of the mortgage was not considered by the court or decided by it. Any order passed by the court under rule 66, directing the way in which a proclamation of sale should be drawn up on application made, is not made appealable under order XLIII of the Code. Primâ facie therefore no appeal would lie. The learned vakil for the appellant, however, has urged before us that inasmuch as this order was passed by an execution court and related to the execution of a decree it is appealable within the meaning of section 47. Section 47 must be read with section 2 and the effect of reading both the sections is not to make every order passed by the execution court appealable, but only such orders appealable as determine the rights of the parties to the execution with regard to all or any of the matters in controversy in suit. By this order neither the rights of the judgement-debtor nor of the decree-holder were determined by the execution court. No appeal therefore lies.

The learned vakil for the appellant has asked us to treat this appeal as an application in revision and interfere with the order.

Two objections have been raised. The first is that the court below should not have entertained, an application from a person who was no party to the execution proceedings, and the second is that it was entertained at such a late stage as to prejudice the judgement-debtor. The application of the contesting respondent was made by way of an intimation to the court and the court was under order XXI rule 66, bound to show all incumbrances which Primâ facie existed on the property which was ordered to be sold. It is, therefore, impossible to hold that the court had no jurisdiction to take note of an alleged claim. If the notification merely informed the auction purchasers that there was a claim being put forward on behalf of Muhammad Hafiz on the basis of this old mortgage, which claim, however, was not admitted by the decree-holder or the judgement-debtor, then there was no harm in the notification. On the other hand if the notification amounted to any his statement or misrepresentation, that may be a good ground for setting aside the sale, under order XXI, rule 90, as it would then amount to an irregularity.

Similarly, the fact that this amendment was made only a few days before the sale may be a ground, for setting aside the sale if the judgement-debtor succeeds in establishing that substantial injury has been caused in consequence of the lateness of the order. That, too is a matter which can be disposed of in the proceedings under order XXI, rule 90.

It is to be noted that pending this appeal the sale has actually taken place and any directions now made with regard to making the notification clear would be altogether useless and futile. I am, therefore, of opinion that it is impossible to interfere in revision at this stage. I would therefore dismiss this appeal.

Mukerji, J.:— I entirely agree that no appeal lies and that in the circumstances of this case I am not prepared to entertain the appeal as a revision from the order of the learned Sub-ordinate Judge dated the 6th of July, 1925.

[After stating the facts, as above, the judgement continued:]

Now the question is whether an appeal is entertainable. As pointed out by my learned brother, it is not every question that arises between a decree-holder and a judgement-debtor that is appealable. In order that it may be appealable, it must be a decree and must come in section 2 of the Code of Civil Procedure. Be that, however, as it may, in this particular case, the decree-holder and the judgement-debtor were at one in attempting to defeat the claim of Muhammad Hafiz and others. It is clear, therefore, that by no stretch of imagination can the case be brought within the purview of section 2 and section 47 of the Code of Civil Procedure. No appeal, therefore, lies.

Coming to the question of revision I fail to see what irregularity has the Judge committed. The Judge was bound, in the interest of intending purchasers, to give them as much information as possible about the property which he was going to sell. If Muhammad Hafiz and others had a bonâ fide claim, it did not matter whether it was going to succeed or going to fail. The Judge could, not enter into that intricate question. He was, in my opinion, bound to tell the intending purchasers that there was such a claim and that they might beware of it. The order therefore, was perfectly correct and it is not open to question by way of revision.

It has been urged upon us that the order was passed very late and that it was likely to frighten the intending purchasers. As may be guessed, the sale proclamation was issued long before the 6th of July, for the 9th of July had already been fixed for sale. If it be a fact that owing to the late notification of the claim, any intending purchaser has been frightened, not knowing clearly what was the matter it would be a matter for the Sub-ordinate Judge to inquire in a proceeding, if any has been taken, under order XXI, rule 90, of the Code of Civil Procedure. That has nothing to do with the case before us at present.

I agree, therefore, that the appeal should be dismissed and there is no good ground for treating the appeal as a petition of revision.

By The Court:— The appeal is dismissed with costs.

Appeal dismissed.