1. In execution of a mortgage decree against two items of property, upon receipt of a notice to settle the terms of proclamation, defendant 3 appeared and asked the Court to order his property to be sold after the other property. The mortgagee objected; but the District Munsif decided that it was in the interest of justice and equity to sell defendant 3's land after the other property had been sold; and so drew up the proclamation accordingly. An appeal was preferred by the mortgagee to the Subordinate Judge who said that as the question of priority had been expressly raised in the suit itself, 'the executing Court has no such power to veto the effect of the decree.' He therefore set aside the order of the District Munsif as one being made without jurisdiction and allowed the appeal.
2. The appellant contends that the first appeal was incompetent as the order passed by the District Munsif was not an appealable order. The learned advocate for the respondent therefore contends, as a preliminary objection, that if that is so, then by the appellant's own showing no second appeal could lie. That view was no doubt expressed by way of obiter dictum by Sadasiva Ayyar J. in Rukmani Ammal v. Narasimha Iyer A.I.R. 1921 Mad. 612; but it has now been well settled that a second appeal does lie. Jackson and Butler JJ. in Raman Nambiar v. Rayiram Naman : AIR1934Mad484 , held that the appealability of an order was governed not by what the lower Court should have done but by what the lower Court purported to do. That decision has been followed consistently. Wadsworth J. expressly followed it in Kallalagar Devasthanam, Madura v. Bhaskaram Pillai A.I.R. 1942 Mad. 741 and the same learned Judge with Patanjali Sastri J. in Sitaramamurthi v. Lakshminarayanamurthi A.I.R. 1943 Mad. 185 accepted that principle as being well settled. There is, therefore, no point in this objection of the respondent.
3. The question whether the order of the District Munsif was appealable or not depends upon the answer to the question whether the order of the District Munsif was one settling the rights of parties, in which case it would come within the scope of Section 47, Civil P. C, or whether it was a mere administrative order passed under Order 21, Rule 66, deciding as a matter of discretion which property should be sold first. The decisions referred to by the learned advocate for the mortgagee, namely, Mangaya v. Sriramulu : (1913)24MLJ477 , Vedaviasa Iyer v. Madura Hindu Labha Nidhi Ltd. A.I.R. 1924 Mad. 365 and Subba v. Pichumani : AIR1926Mad1144 are cases in which some question of priority arose in execution; and the executing Court, in determining which property should be sold first, adjudicated on the rights of the parties. It was held in Rama Naidu v. Ramakrishna A.I.R. 1924 Mad. 527 that unless rights of parties were decided the fixing of the order of selling was an act of administration by the executing Court and therefore not appealable, the learned Judge following the Full Bench decision in Sivagami Achi v. Subramania Iyer (1904) 27 Mad. 259. The fixing of the order of sale in execution of a mortgage decree may, however, be somewhat different from a case where the execution was of some other kind of decree, a money decree for example; for as was observed in Thanmul Sowcar v. Ramadoss Reddiar A.I.R. 1928 Mad. 500, 'one of the rights of the mortgagee undoubtedly is to choose against which of several properties mortgaged to him he may proceed.' In Arunachallam Chetty v. Murugappa A.I.R. 1917 Mad. 772, the learned Judges went so far as to say, 'the mortgagee is ordinarily entitled to realise the debt due to him by proceeding against the whole or any of the parcels of land mortgaged to him.' He is even entitled, they hold, to ask the Court, before the decree is passed, to order a certain item of property to be sold first. Mr. Vallabhachari contends that although that may be so, if the mortgagee does not exercise his option and merely asks the hypotheca to be brought to sale, it is open to the Court to fix a certain order of sale even against the wishes of the mortgagee. I should be reluctant to agree that the right of a mortgagee to sell his property in whichever order he may choose or to give up an item of property, can be lost at any stage; but one of the cases in which it was said that the fixing of the order of sale was a mere administrative order not liable to appeal, viz., Narasimha Rao v. Subbarayudu A.I.R. 1926 Mad. 834, dealt with a mortgage decree. I am bound by this decision of a Division Bench of this Court and must, therefore, hold that even though the decree was a mortgage decree, the Court had a discretion in fixing the order of sale and. that the order doing so was an administrative order not liable to appeal.
4. The ground on which the lower appellate Court interfered in appeal was that as the judgment-debtor had raised the point in the suit and it had been held that he had no such right either in law or in equity to have his item of property sold last, the executing Court had no jurisdiction to pass an order in his favour. There can be no doubt that if a decree fixes the order of sale, it is not open to the executing Court to vary it. If it does so, then it passes an order affecting the right of a party, which order would be appealable. But I do not find that such is the case here. The Court which passed the decree did nothing more than to negative defendant 3's claim that he had a right to have his property sold last; there is nothing in para. 14 of the trial Court's judgment which would in any way fetter the executing Court's discretion. I think the learned District Munsif has put that point very well in his short order. He has said:
The question of the order of sale was gone into in the suit and it was held that defendant 3 has no right to insist upon the sale of his property being held only in last instance. While defendant 3 has no such right, it does not necessarily follow that such an order of sale could not be made in execution proceedings, if it is just and convenient to do so and does not cause any inconvenience or loss to the decree-holder.
When a similar objection was raised in Narasimha Rao v. Subbarayudu A.I.R. 1926 Mad. 834, the learned Judges said:
It is argued that because the relief which defendant 4 has now obtained was asked for in the suit itself and not granted, it was not open to the lower Courts to grant him the relief in execution. The point has been expressly decided in Raghavachariar v, Krishna Reddi A.I.R. 1924 Mad. 509, and we see no reason for not accepting that authority.
The judgment-debtor did not question the jurisdiction of the Subordinate Judge in the lower appellate Court; but although I do not consider that that precludes him from raising the point here, it will follow from what has been said above that the lower appellate Court had no jurisdiction to set aside the order of the District Munsif.
5. The question still, however, remains whether this Court in its revisional jurisdiction should allow the original order of the District Munsif to stand or not. Although I feel that the executing Court should be most reluctant to pass any order restricting the discretion of the mortgagee to sell the property in any order in which he pleased, yet I cannot interfere in revision unless I am satisfied that the Court acted without jurisdiction. Unfortunately, the learned Munsif did not give any reasons for his order, but on the few facts that appear on the record I find it impossible to say that the order of the District Munsif was one without jurisdiction. The learned. Judges in Narasimha Rao v. Subbarayudu A.I.R. 1926 Mad. 834, above referred to, upon finding that the order had been passed in the exercise of the Court's discretion refused to interfere.
6. The appeal is allowed, the order of the lower appellate Court set aside, and the order of the District Munsif restored. There will be no order as to costs; for the appellant did not raise the objection in the lower appellate Court, as he should have done. If he had, the first appeal: might have been dismissed in limine.