1. This is an appeal from the order of Ramachandra Iyer, J. (as he then was) in Application No. 2909 of 1960 in C.S. No. 263 of 1954 which itself was an application to set aside the order of the First Assistant Registrar made on 4th November, 1960 in Proclamation No. 6 of 1960 in E.P. No. 302 of 1959 settling the sale proclamation and directing sale of the properties. Very briefly stated, the learned Judge was of the view that in the absence of a judicial order directing she sale, the Officer (First Assistant Registrar) had no jurisdiction to proceed to tettle the proclamation for sale, and to issue the warrant of sale. The learned Judge-pointed out that the decree under execution was a money decree, and not a mortgage decree under which, by the force of the decree itself, there ought to be a sale. The learned Judge further observed that there was no actual order for sale in the record, the only order passed in the Execution Petition being one for attachment of properties. The learned Judge referred to the principle embodied in Order 21, Rule 64, Civil Procedure Code and also to Order 39, Rule 38 of the Original Side Rules. Though this rule modified the application of the Code of Civil Procedure, the learned Judge-thought that there can be no actual sale without an order therefor by the Court.. The settlement of the terms of the proclamation was in consequence set aside by the learned Judge. The Original Side Appeal is instituted by the decree-holder..
2. We have been at some pains to study the Original Side Rules with regard to this matter, and also to ascertain the precise procedure that now prevails, and the extent to which it may be stated to be in accordance with law. Upon two matters, we are afraid that certain of the actual facts and records were not brought to the attention of the learned Judge (Ramachandra Iyer, J.) or placed before him for his notice. The learned Judge was apparently of the view, as the very language of his judgment indicates, that the attachment of certain properties in pursuance of the money decree had alone been effected in the Execution Petition, and that there was no further order for sale of the attached properties. The learned Judge further seems to have thought that the concerned Officer (First Assistant Registrar) was functioning purely as an Executive Officer, executing judicial orders in respect of sales of properties by the actual conduct of the sale, and that he was not functioning as the Executing Court itself. In both these matters, the record and the rules-appear to justify a different view. As far as the powers and functions of the Officer (First Assistant Registrar) are concerned, we may observe that under Order 1, Rule 4, Sub-rule (4) of the Original Side Rules (1956), this Officer will be a ' Court'. We are further satisfied, from such research into the actual practice as we have been. . able to make, that he has been actually functioning as an Executing Court under this sub-rule in regard to money-decrees. Under Order 1, Rule 5 of the Original Side Rules, not merely the Rules themselves, but even the Forms, actually repeal; and supersede the provisions of the Civil Procedure Code, in so far as such provisions are inconsistent with the Rules and Forms. Our attention has further been drawn to a particular form (Form 126-A) which is an application by the decree-holder for issue of a warrant of sale under the Original Side Rules, and which has to be filed within three months from the date of effecting attachment of property.
3. There can be no doubt whatever that this form requests the concerned Officer (Court) to pass an order for sale, and it implies that the Officer (First Assistant Registrar) could validly make an order for sale in pursuance of this application. Not merely this : we have also scrutinised Order 39, Rule 38 referred to by the learned Judge, as well as Rule 41 of the same Order, which is equally important. These two rules have to be read together, and they indicate the following procedure as authorised by the rules. If the decree-holder applies for sale more than three months after the date of attachment, the application has to be placed before the learned Master, and it is that Court which is to order sale of the property. But in all other cases Rule 41 seems to definitely imply that the Registrar (who includes the First Assistant Registrar) may order the sale, by issuing a warrant of sale.
4. We are satisfied that this is the procedure that is being followed, in accordance with the Rules. The other point upon which the record was not fully brought to the notice of the learned Judge (Ramachandra Iyer, J.) is that we have now discovered an actual order for sale by the First Assistant Registrar, functioning as a Court, directing the Sheriff to sell the property in accordance with the application made to him under Form 126-A. There appears to be nothing illegal or contrary to the Rules in this procedure. Further, this order certainly amounts to a judicial order for sale, as the concerned Officer (First Assistant Registrar) is functioning as an Executing Court within the Rules.
5. Under these circumstances, we are unable to see anything which is illegal or opposed to the letter or the spirit of the Original Side Rules, in the procedure that has been followed in this case, and in the actual order directing the sale, and settlings the terms of the proclamation as a simultaneous measure, in accordance with the prevailing practice. We are hence constrained to allow the Original Side Appeal, and to hold that the sale was validly directed, and that further proceedings in. execution should ensue. We order accordingly. The parties will bear their own-costs in both the Courts, except to the extent that the costs of the appeal may be taxed and provided for in execution on behalf of the decree-holder.
6. Before taking leave of the appeal, we desire to observe that the arguments to the contrary effect which prevailed with the learned Judge were at least partly due to the somewhat ambiguous and apparently defective language of Order 39, rules 38 and 41 of the Original Side Rules, which govern the procedure. In Order 39, Rule 38, it is not made clear that in case where the application is made within the period specified by the order of attachment, the Master need not direct the sale, but that the Registrar (First Assistant Registrar) could validly do so himself. Again, in Rule 41 it would be highly desirable to make it equally explicit that, by issuing a warrant for sale of the property, the Registrar is really making a judicial order for sale, by virtue of his status as a Court conferred on him by the Original Side Rules. We hope that this matter will be taken up separately, and the Rules clarified and amended to the necessary extent.