1. The petitioners seek to revise an order passed by the Subordinate Judge of Bezwada on a claim petition preferred by them under Order 21, Rule 58, Civil Procedure Code: This petition contains two specific prayers:
(a) To declare the mortgage right of the petitioners over the properties set out in the schedule annexed hereto and to have them sold subject to the mortgage amount; and (b) to stop the sale pending disposal of this petition.
2. The learned Subordinate Judge passed the following order:
Counterfiled. The mortgage is registered, and in the ordinary course should have found a place in the encumbrance certificate. Decree-holder, however, opposes this petition as it is filed too late. Sale to take place with notice of this mortgage and that decree-holder disputes it.
3. The petitioners complain that the Court below failed to exercise its jurisdiction and state that it should either have investigated their claim or it should have refused to make such investigation after finding that their claim was designedly or unnecessarily delayed. Of course the present order is no investigation of the claim and there is no finding that the claim Was filed with designed or unnecessary delay. The claim is so far admitted that the sale is ordered to take place with notice of this mortgage which to some extent might be taken as allowing prayer (a) and the sale is not stopped which is a denial of prayer (b). I should take the order as being simply a refusal to stop the sale and it does not relieve the Court of the necessity of either investigating the claim or of refusing an investigation under the proviso. It may be described as an interim order and no final decision. However, the counter-petitioners strenuously contend that this order must be construed as an order under the proviso in the light of the Full Bench ruling in Venkataratnam v. Ranganayakamma ILR (1918) M 985. The principal question agitated in that case was whether a refusal to investigate under the proviso of Order 21, Rule 58, could be taken as an order against the party within the mischief of Order 21, Rule 63, Civil Procedure Code, and Article 11 of the Limitation Act. But incidentally the Court held that the order in the case amounted to an order under the proviso to Rule 58, and the counter-petitioners contend that that order is on all fours with the one in question in the present case. As a matter of fact the order as printed in Venkataratnam v. Ranganayakamma ILR (1918) M 985 is rather deceptive because it gives the impression that the whole order has been transcribed whereas only one sentence has been extracted. This was first noticed by Sir Walter Salis Schwabe, C. J., in Abdul Kadir v. Somasundaram Chettiar ILR (1922) M 827 and he recalled the original order to which I also have referred. It runs from the second paragraph:
As this (the zamindarini's) petition was filed late this claim was ordered to be notified to the intending bidders. The zamindarini has not obtained a decree against judgment-debtor for the cist, nor has she apparently filed a suit within (sic) in this Court or before the Revenue Court, nor has- any suit been filed about the land not being saleable. The fact (sic) fresh petition has been filed for an inquiry being made as to the claim of the land not being saleable nor was an enquiry sought on the strength of that petition, though nearly ten months have elapsed since then. Decree-holder's prayer that the sale should be held subject to this claim for cist which has not yet been proved inadmissible. The allegations of the zamindarini will be notified to the bidders with the remark that the zamindarini did not take steps for her claim being enquired into during the last ten months.
4. As Sir Walter Salis Schwabe, C.J. observes, the Full Bench treated that order as a refusal of the application on the ground that there had been laches or delay which brought the matter tinder the proviso to Order 21, Rule 58. The order in the present case is very different. The Subordinate Judge begins by finding that the mortgage is registered and one which in the ordinary course should have found a place in the encumbrance certificate. He evidently thinks that the encumbrance certificate is in error, for, he proceeds to order that the sale shall take place with notice of this mortgage. He does not find as is now suggested on behalf of the counter-petitioners that the mortgage was in respect of property not affected by the sale. He mentions that the decree-holder opposes the petition as it is filed too late, but he gives no opinion himself as to whether there has been any delay. I cannot hold that such an order is one where in the words of Napier, J., in the reference to the Full Bench in Venkataratnam v. Ranganayakamma ILR (1918) M. 985, a Court purports to make an order under the proviso to Order 21, Rule 58, that is to say, an order refusing to investigate. The learned Subordinate Judge has not refused to investigate and has not suggested any reasons why he should refuse to investigate. I find that so far all that he has done has been to refuse to stop the sale, and to give to the bidders notice of this mortgage and of the decree-holder's objection, and I direct that he shall proceed to dispose of the petition according to law. Until he does so it cannot be treated as decided. Accordingly the petition is allowed with costs. Pending the decision of this petition the sale which was stayed by an interim order of this Court is stayed. I observe that this Court has already deprecated the practice of selling property with notice of the unascertained claims. [Vide Venkataratnam v. Ranganayakamma ILR (1918) M. 985 and Sharafi v. Ali (1922) 44 MLJ 141.