The question in this appeal Is Whether the Lower Appellate Court was right in holding that no appeal lay to it and passing an order of dismissal. The decision of the Court of First Instance was as to the order in which certain items of property were to be sold in execution of a decree on a mortgage and the question is whether that decision was appealable as having been passed Under Sect. 47, first, because although it was passed between the parties to the suit that order should be read as relating only to questions arising between the parties who are opposed to each other in the suit; that is, it is contended between, the plaintiff and one or other of the defendants and not between the defendants themselves. In support of this we have been referred to Raynor v. The Mussoorie Bank, Yagnasami Ayyar v. Chidambaranatha Mudaliar, and Bhagwati v. Banwari Lal. But although these cases do contain language susceptible of an interpretation, which may support the appellant's argument, that argument was not what was being considered by the learned judges. For in each of those cases the matter under consideration was in dispute between a judgment-debtor and his representative or a person on whom his interest had in some way devolved and not (as here) between two judgment-debtors, whose interests were absolutely independent It is, in our opinion, clear on principle that no such rule, as the 8th respondent's learned vakil contends for, can be laid down. In the case for instance of a partition suit, the judgment-debtors may very well find their interests opposed, when delivery is attempted, although up to the final decree they had no cause for complaint against each other and similarly in administration or partnership suits. We can see no reason for acceding to the suggestion that we should limit the scope of Sect. 47 in the way suggested, when to do so, would exclude from its purview the decision of many of the questions, which must inevitably arise only after the decree and when the result would be to frustrate the object of the section, recognised by the Privy Council in Prosunno Kumar Sanyal v. Kali Das Sanyal, viz., the cheap and speedy settlement of all disputes at the stage of execution.
The other argument attempted is that the question now raised is intrinsically not one relating to the execution or satisfaction of the decree, because it has arisen in proceedings for and relates to the settlement of the terms of the sale proclamation. It is true that the question in terms is only whether one item of the mortgaged property shall be sold before the others and, of course, whether that order of sale shall be entered in the proclamation. But in fact we may say, without expressing any opinion on the merits, that the question raised is whether the decree shall be satisfied to a substantial extent primarily from the 12th defendant's item 2, in accordance with the terms of his transfer from the mortgagor and the 13th defendant, the Official Receiver, representing the mortgagor's estate. It is clear that the interest of the owners of the items of the mortgaged property, other than item 2, will be seriously affected according as the 12th defendant's claim for postponement of the sale of the last mentioned item is allowed or rejected. In those circumstances, the matter is not, in our opinion, one of those referred to as administrative in Sivagami Achi v. Subrahmania Ayyar, in respect of which no appeal is allowed. The question raised is of a substantive right covered by Sect. 47, the disposal of which, as the last paragraph of the judgment in Sivagami Achi v. Subrahmania Ayyar, shows results in an appealable order. To illustrate this, we may refer to the judgment of Banerjee, J., in Jogodishury Dabea v. Kailash Chundra Lahiry.. “An order in execution proceedings can come under Sect. 244 (now Sect. 47), only when it determines some questions relating to the rights and liabilities of parties, with reference to the relief granted by the decree, not when it determines merely an incidental question as to whether the proceedings are to be conducted in a certain way.” The result is that an appeal lies to this Court and lay to the Lower Appellate Court. The Lower Appellate Court has not dealt with the appeal before it on the merits. There must, therefore, be a remand, its decision being set aside in order that it might do so. Costs in the Lower Appellate Court and in this Court to date will be costs in the cause and will be provided for in the order to be passed on remand.
Civil Revision Petition No. 74 of 1922 is dismissed. No order is made as to costs.
S.SOrder set aside : Case remanded.