1. A preliminary objection has been raised that no appeal lies.
2. The appellant seeks to get this Court to interfere with an order of the First Class Subordinate Judge, by which he refused to alter the valuation of the property to be sold that was entered in a proclamation of sale, or to adjourn the sale in order to have a further enquiry as to its value. Mr. Shingne objects that these are merely administrative orders and not judicial, so as to entitle the appellant to say that they fall under Section 47 of the Civil Procedure Code. He has cited the authority of the Madras Full Bench in Sivagami Achi v. Subrahiriania Ayyar liov (1903) Mad. 259, f.b. which is a leading authority on the point, This was a decision with regard to Section 287 of the Code of 1882, corresponding to Order XXI, Rule 66, of the present Code. It was held that none of the proceedings of a rule Court under Section 287 of the Code of Civil Procedure, and the rules 'framed there under in relation to the proclamation of sale, amounted to an 'order' within the meaning of Section 244(corresponding to Section 47 of the present Code) so as to be appealable as a 'decree'.
It is further remarked that under Section 283 the proceedings are in ' themselves administrative and not judicial; but that if a sale eventually takes place, objections may be taken to the confirmation of the sale on any of the grounds mentioned in Section 311(corresponding to Order XXI, Rule 90, of the present Code), some of which may relate to the contents of the proclamation.
3. This ruling has been followed by the Calcutta, Allahabad and Patna High Courts, cf. Deoki Nandan Singh v. Band Singh (1911) 16 C.W.N. 124, Ajudhia Prasad v. Gopi Natk (1917) I.L.R. 39 All. 415, Deokinandan Singh v. Rajah Dhakeawar Prasad Narain Singh (1916) 2 p.l.j. 13 and Baurendra Nath Mitra v. Mritunjay Banarji (1920) 5 p.l.j. 270. The decision has also been followed in various other Madras case a such as Ramanathan Chettiar v. Venkatachellam Chettiar : AIR1923Mad619 and Lanka Rama Naidu v. Lanka Ratnahrishna Naidu (1923) 46 M.L.J. 192
4. Mr. Patwardhan for the appellant has referred us to Kaveribai Atnmal v. Mehta & Sons (1923) 46 M.L.J. 71 where a doubt was expressed whether the question should not be reconsidered by a Full Bench in view of the fact that Section 288 of the former Code of 1882 does not appear in the existing Code. The Chief Justice, Sir Walter Schwabe, expressed a doubt, whether the decision of the Full Bench in Saveing Achi's case was a correct finding, and Coleridge J. in agreeing expressed the opinion that 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 to make it a judicial function, from which an appeal will lie. On the other hand, in Lanka Rama Naidu v. Lanka Ramakrishna Naidu, this question was fully considered and two other Judges of the same High Court, viz., Mr. Justice Krishnan and Mr. Justice Waller, came to the conclusion that the omission of Section 288 did not really affect the ratiu decidendi in Sivagarm Aehi'a case. A reference to the judgment in that case, both in the order of reference to a Full Bench and in the opinion expressed by the Full Bench, shows that the decision was not based merely upon the provisions of Section 288, but also upon the view (1) that orders under b. 287 were of an administrative and not a judicial nature, (2) that there was another suitable remedy available to a party, who was prejudiced by such orders, viz., by getting the sale eventually set aside, and (3) that it would be very undesirable to allow appellants in cases of this kind to delay sales in execution. Schwabe C.J., in Kaveribai Ammal v. Mehta & Sons, also remarks (p. 73):-
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 go 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.
5. There is, apparently, no Bombay ruling on the point. But I think the fact that there is no ruling shows pretty clearly that in practice no appeals have been brought from interlocutory orders in regard to proclamations of sale. This confirms us in holding that there is no sufficient reason for our taking a different view from that of the four other High Courts. In these circumstances, we think that the preliminary objection succeeds, and the appeal is accordingly dismissed with costs.
6. We think that in this case separate costs should be awarded in respect of (1) respondents Nos. 1 and 2, (2) respondent No. 3 and (3) respondents Nos. 4 and 5, who have separate interests. Respondents Nos. 4 and 5 were, no doubt, added at their own request. But it appears reasonable that they should be allowed separate costs, as their interests were to some extent at stake and they applied for orders in this Court, to which they were held entitled. Mr. Parulekar for respondents Nos. 4 and 5 asks us to extend the stay order which was granted by this Court's order of March 24, 1927, and October 12, 1927, until the disposal of the darkhast for execution by sale of the mortgaged property in the lower Court, We think, however, that this would be going beyond our appellate functions, and all that we are prepared to do is to extend those stay orders for a period of two months to enable the respondents to make such applications in the lower Court as they may be advised,
7. I agree.