1. This is an interlocutory appeal from an order of Kumaraswami Sastri, J. sitting on the original side refusing the application by Judge's summons to alter the price fixed as the upset price in the proclamation of sale, to alter the mode of selling of certain part of the property into a sale as a whole and to postpone the date of the sale.
2. The suit was a mortgage suit. The preliminary decree gave what seems to be a short time of three months for redeeming. That time having elapsed, no application having been made for extension of the time and no appeal having been taken from the preliminary decree, a final decree was passed ordering a sale. The Court then directed the sale on a certain day and in the ordinary way under Order 21, Rule 66 caused a proclamation to be drawn up. Thereafter this summons was taken out and the learned Judge having dismissed it, this appeal is brought to this Court; and the question is whether such an appeal lies.
3. Under the Code of Civil Procedure then in existence, which is in many ways similar on this matter to the present Code, a Full Bench of this Court in Sivagami Achi v. Subramania Aiyar (1904) ILR 27 M 259 : 14 MLJ 59 (FB) held that the Court in exercising its powers in settling the terms of the sale proclamation acts ministerially and not judicially, and that therefore no appeal lies. I think it is true to say that for the purpose of that decision it was not necessary so to hold; but, however that may be, that is a finding of the Full Bench. Speaking for myself, I have very great doubts as to whether it is a correct finding or not, but it is a finding by which we are bound, provided there is nothing in the alteration in the Code to make it no longer applicable. On that, an interesting argument has been addressed to us and 1 should myself desire to refer that question to a Full Bench if 1 considered it necessary to follow that case in order to decide the point before us, but I do not think it is. The question to be determined here must turn on the proper interpretation of the Clause 15 of the Letters Patent, which says:
" We further ordain that an appeal shall lie from the judgment (not being an order of a certain kind) of one Judge of this Court."
There is no doubt that those words give a right to appeal in respect of many kinds of orders, and the law, so far as this Court is concerned, is to be found in the Full Bench decision in
Tuljaram Rao v. Alagappa Chettiar (
1910) ILR 35 M 1 :
21 MLJ 1 (FB) where a very large number of instances were given of orders which were appealable and one or two instances were given of orders which were not appealable and the Court came to the conclusion that the kind of order that was not appealable was an order which was described as merely interlocutory. In my judgment, the order in this case was merely interlocutory. It does not finally dispose of the rights of the parties at all. I should add that, in so far as it is an application to extend the time for the purpose of allowing the amount of the decree, to be raised by mortgage or by private sale of such property, the Court of first instance by reason of the terms of
Order 21, Rule 83 (3) was expressly forbidden to make such order, and on that ground the Court had no power to make such an order and no appeal can lie from its refusal to do so. So far as the question of granting further time is concerned, the power of the Court below to do so must-be sought under
Order 21, Rule 69 which says that the Court, in its discretion may adjourn a sale to a specified day and in my view, the order in the exercise of that discretion is an order of a merely interlocutory nature. I. think the same applies to the question here whether there should be an alteration of the terms of the sale proclamation by raising the upset price and dividing the property into lots. The matter is so purely one of discretion of the lower Court not affecting the final rights of the parties at all that it ought to be treated as merely interlocutory.
4. On these grounds, this preliminary point succeeds and this appeal must be dismissed with costs.
Coleridge, J.
5. I agree.
6. I should like to add that in my opinion Sivagauri Achi v. Subramania Aiyar (1903) ILR 27 M 259 : 14 MLJ 57 (FB) needs to be reconsidered by a Full Bench as in my opinion the alteration of the Code was deliberate and was intended to take away the ministerial functions that were alleged to be vested in the Court and distinctly made it a judicial function from which an appeal will lie.