1. This is an, appeal against an order in execution of a mortgage decree. The mortgage covered three houses with ground attached thereto and in the property the present appellants were entitled to a half share. The appellate decree made the half share of the appellants liable only to the extent of a portion of the mortgage amount with interest theron, the half share of the other defendants being liable for the full amount of the mortgage decree. In execution of the decree the decree-holder sought to bring to sale the hypotheca and asked for leave to sell the whole property in one lot owing to the difficulty 0f selling an undivided share. Notice of this application was sent to the appellants and they filed a counter-affidavit in which they pleaded that the whole property could not be brought to sale for the total liability of all the defendants together, but that only their half share in the property should be brought to sale to recover the limited amount for which the appellants were liable tinder the decree. There was also a contention that the three houses should be sold in separate lots. After a commissioner had been appointed, the Court passed an order on 17th January, 1936, in which it observes:
In order to avoid further disputes it is better that the properties are sold as one lot,
and after considering the question of the value the order concludes, 'the properties will be sold as one lot.' The appellants thereafter asked for time to discharge the decree, waiving fresh proclamation. But on the date to which the sale was adjourned, they filed an application in which they in effect renewed the prayer put forward in their counter-affidavit to the notice to settle the terms of proclamation, pointing out that the proposal to sell the entire property for the amount due under the decree would throw a greater burden upon the half share of the appellants. In fact the object of the executing Court in approving this arrangement was to get the best price possible and to adjust the relative liabilities of the different sets of defendants out of the sale proceeds instead of taking the risk of a piecemeal sale. Though the order may be attacked as not being in accordance with the letter of the decree, it is, in my opinion, in accordance with the spirit of the decree. However, that may be, the application which the appellants put forward after they had taken time to discharge the debt has been rejected on the ground that it was barred on the principle of res judicata.
2. It is strenuously contended that the former order was not an order under Section 47, Civil Procedure Code, determining the rights of the parties but a mere administrative order prescribing the manner of sale, against which there would be no appeal. Therefore it is contended that the order cannot operate as a bar to a subsequent application to adjudicate upon the right of the appellants to have their share sold only for a portion of the decree amount for which they have been held liable. It seems to me that if the order dated 17th January, 1936, is not an order falling under Section 47, Civil Procedure Code, then the later order on the application of the appellants to agitate once more the contention which they had put forward at an earlier stage, must equally be held to be one not falling under Section 47 and no appeal against it would lie. I am however definitely of opinion that the order dated 17th January, 1936, is one which falls under Section 47, Civil Procedure Code. It is well established that the mere settlement of the terms of a proclamation, when no dispute between the parties as to their rights or liabilities is decided judicially, cannot be deemed to be an order under Section 47, Civil Procedure Code, from which an appeal would lie. But it is equally well settled that when at the stage of settling the terms of the proclamation the parttes put into issue a question affecting their relative rights and liabilities with regard to execution and this matter is heard and decided, that decision is a judicial decision and the parties will not be allowed in the course of execution to canvass the same matter again. The point is covered by the authority of Vedaviasa Aiyar v. Madura Hindu Labha Nidhi, Ltd. : AIR1924Mad365 and subsequent decisions to the same effect.
3. Now in the present case the decree-holder proposed to bring to sale the whole of the rights of the defendants in one lot, and, dividing the sale proceeds into two shares, to adjust the relative liabilities of the defendants under the decree against those shares. The appellants filed a counter-affidavit contesting the right of the decree-holder to sell the properties in this way and asking for an adjudication on the question whether their share should not be sold separately and their several liabilities realised by these separate sales. On this counter-affidavit there was a definite judicial decision as to the way in which the decree should be worked out by sale of the properties. That was clearly a determination of the liability of the interests of the judgment-debtors to be sold collectively, so that their liability under the decree could be worked out by a division not of the property itself, but of the sale proceeds after the property had been sold. Assuming that that decision was a wrong decision and it went against the letter of the decree, the appellants should have taken it up in appeal and not having done so they cannot be heard to raise the matter at a later stage. It follows therefore that the appeal must be dismissed with costs, (Leave to appeal is refused.)
4. There is also an application filed under the Madras Act IV of 1938 (C.M.P. No. 2492 of 1939) based on certain passages in a judgment of my own in Ponnambalam Chetti v. Ambalam Raman Chetti : AIR1939Mad789 . In that case I was dealing with the position in which there was a mortgage covering two quite separate plots of land, one of which contained buildings and the other did not and I held that the mere fact that the unoccupied site was destined to be built upon at some future date would not bring it within the term 'house property' used in Section 4(d) of the Act. It seems to me that this decision has no bearing whatever on the facts of the present case, for it is apparent from the Commissioner's report and plan that the vacant ground included in the present mortgage is a part of the compound of the house property which the mortgage covers. There is a compound wall round the vacant ground and the well serving the houses is included in it. The mere fact that this and originally bore two paimash numbers does not suffice to separate the compound from the houses to which it is attached; and as I observed in the case quoted, the term 'house property' will normally include the site on which the building stands and the garden, compound or yard attached thereto. In this view it must be held that this mortgage is a debt contracted on the security of house property alone and therefore it is saved from the operation of Act IV of 1938 by the provisions of Section 4(d) of that Act. The petition is therefore dismissed with costs.