1. This is an appeal against an order passed in execution proceedings by the First Class Subordinate Judge of Thana.
2. The appellants obtained a money decree against the respondents, and presented darkhast No. 73 of 1931 to recover the decretal amount by attachment and sale of the respondents' property. The darkhast was presented on February 12, 1931, and when the notices were served on them, respondent No. 1 put in his written statement (exhibit 13) on September 8, 1931, alleging inter alia that he was an agriculturist. Subsequently on December 19, 1931, the plaintiffs put in a purshis (exhibit 16) stating that under; a, compromise the had agreed to grant six months time to the judgment-debtors to pay off the decretal amount, and that the judgment-debtors had agreed to waive their contention raised by respondent No. 1 in exhibit 13. The respondents' pleader, however, stated on January 12, 1932, that he had no instructions regarding the alleged compromise. The property was attached on March 8, 1932, and then an order for its sale was passed under Order XXI, Rule 64, of the Civil Procedure Code, on July 28, 1933. Notices were issued to the judgment-debtors under Order XXI, Rule 66, and on October 10, 1933, the following order was passed :-' Ordered sale. Issue proclamation.' Thereafter some proceedings as regards the addition of parties went on and the execution was stayed by the High Court. Ultimately the papers were received back on December 21, 1936, and on January 12, 1937, the judgment-debtor Khanderao made an application (exhibit 80) stating that his contention in the written statement (exhibit 13) that he was an agriculturist had not been considered, and requesting that as he was an agriculturist, the proceedings should be transferred to the Collector for the sale of the property attached. The lower Court then recorded evidence regarding the status of the judgment-debtor Khanderao and held that he was an agriculturist. The darkhast was, therefore, ordered to be transferred to the Collector of Kolaba for execution. It is against that order that the present appeal is filed by the decree-holders.
3. One of the contentions on behalf of the decree-holders, which was urged before the lower Courts, was that by reason of the alleged compromise mentioned in the purshis (exhibit 16) it was not open to the judgment-debtor, respondent No. 1, to put forward the plea that he was an agriculturist. The alleged compromise was not admitted on behalf of the judgment-debtors ; nor has it been proved. Moreover, even if Khanderao had then agreed to give up his contention regarding his status, still he cannot be regarded as having waived his right to claim the transfer of the proceedings to the Collector after the order for sale was passed, if he could prove that on the date of the order he was an agriculturist. Section 68 of the Civil Procedure Code and the rules made thereunder require that when an order for sale is passed and the judgment-debtor is an agriculturist, the proceedings should be transferred to the Collector for execution of that order ; in other words, the date at which the status of the judgment-debtor is to be considered is the date when the order for sale is passed. That is also clear from the ruling in Sopana v. Dattatraya : AIR1934Bom383 . It was, there fore, open to the judgment-debtors to contend that the proceedings should be transferred to the Collector after the order for sale was passed, and the Court ;was bound to transfer those proceedings if it found that at the date of the order for sale the judgment-debtors or any one of them was an agriculturist.
4. The lower Court has found on the evidence that one of the judgment-debtors Khanderao is an agriculturist, but it is urged that there was no issue regarding his status on the date of the order for sale. But when his application (exhibit 80) is read with the evidence adduced on his behalf, it is evident that he wanted the contention raised by him in his written statement (exhibit 13) to be considered, and that related to his status in the year 1931, and the evidence is led that all along he has been an agriculturist. When the witnesses were examined there was no suggestion that Khanderao had changed his status at any time. Hence, it must be deemed that the lower Court held Khanderao to be an agriculturist on the material date, namely, the date on which the order for sale was passed. No evidence was adduced by the decree-holders to rebut the evidence adduced on behalf of Khanderao, and the finding of fact recorded by the lower Court practically stands unchallenged.
5. But the most important objection against the order of the lower Court is that judgment-debtor No. 1 did not put forward his contention regarding his status at the proper time. The contention which was Taken in the written statement emibirist was not then pressed, and no finding regarding the status of Khanderao was recorded before the order for sale was passed on August 28, 1933. After that order notices under Order XXI, Rule 66, were issued for the settlement of the terms of the proclamation. It was at that stage that the judgment-debtors should have come forward to ask for the transfer of the proceedings to the Collector for execution of the order for sale. As observed by Broomfield J. in Sopana v. Dattatraya : AIR1934Bom383 , when an order for sale is passed under Order XXI, Rule 64, it is really a preliminary order, which may be subsequently modified if any of the judgment-debtors appear in reply to the notices under Order XXI, Rule 66, and prove that they are agriculturists. In that case the proceedings would have to be transferred to the Collector. But this opportunity given to Khanderao was not availed of by him, and he remained absent of the date fixed in the notice issued to him under Order XXI, Rule 66. The Court then made an Ilamatron 1BTsn' order would not have been passed if any of the judgment-debtors had appeared and urged that the proceedings should be transferred to the Collector by reason of their being agriculturists. It is ; therefore, urged on behalf of the appellants that by implication the Court then found that it had jurisdiction to proceed with the sale, and it was not necessary to send the proceedings to the Collector. When once such an order is passed, it is binding on the judgment-debtors unless they appeal from that order and get it set aside. On the other hand, it is pointed out that such an order is not a judicial order but merely an administrative order; from which no appeal lies. In support of this view reference may be made to Sivagam Achi v. Subrahmmia Ayyar I.L.R. (1903) Mad. 259. and Krishnarao Ambadas v. Krishnarao Raghunath I.L.R. (1928) 52 Bom. 444. In both these cases it was held that the proceedings of a Court under Order XXI, Rule 66, of the Civil Procedure : Code, and the rules made thereunder in relation to the proclamation of sale, are not orders within the meaning of Section 47, and are not appealable. It is true that administrative directions relating to proclamation and other matters necessary for the carrying out of the sale cannot be regarded as orders falling under Section 47 of the Civil Procedure Code; but an order as to whether the sale is to be held by the Court itself or by the Collector is a judicial order relating to the execution of the decree, and, as such, it falls under Section 47 of the Civil Procedure Code. It has to be passed after a consideration of the question whether any of the judgment-debtors was an agriculturist at the date of the order of sale, and when a notice is given to the judgment-debtor under Order XXI, Rule 66, for the settlement of the terms of the proclamation, it is his duty to put forward his contention that he was an agriculturist on the date of the order of sale and, therefore, instead of issuing a proclamation, the Court should transfer the proceedings to the Collector. If he fails to raise such a contention at that time, and the Court passes an order that the sale should be held by itself, then that order is a judicial order which is binding on the judgment-debtor. If the judgment-debtor appears and contends that he was an agriculturist at the date of the order for sale and the Court holds that he was not and proceeds to hold the sale itself, then it would be open to the judgment-debtor to appeal from that order. The same result would follow if he does not appear in reply to the notice issued to him and allows an ex-parte order to foe passed against him. In the present case not only did the judgment-debtors fail to appear on receiving the notices issued to them under Order XXI, Rule 66, but even after the terms of the proclamation were settled they made an application (exhibit 29) on December 22, 1933, asking for a fresh panchanama and a fresh valuation of the property. That application was granted and a fresh proclamation was issued on January 11, 1934. Thus, even though they accepted the order passed by the executing Court and allowed the proceedings of sale to go on in the Court itself, it was nearly three years thereafter, when the proceedings were received back from the High Court, that Khanderao came forward with his application (exhibit 80). But since already an order had been passed that the Court itself should proceed with the darkhast, it was not open to him subsequently to put forward a contention which he ought to have put forward when the notice under Order XXI, Rule 66, was issued. I, therefore, hold that the lower Court should not have gone into the question of the status of the judgment-debtor No. 1 at that stage.
6. I set aside the order of the lower Court and direct that it should proceed with the proceedings for sale, instead of sending them to the Collector. The respondents shall pay the costs of the appellants and bear their own.