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(Karnam) Venkataseshyya Vs. (Karnam) Ramaraju and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1935Mad714
Appellant(Karnam) Venkataseshyya
Respondent(Karnam) Ramaraju and anr.
Excerpt:
- pandrang row, j.1. this is an appeal from the order of the district judge of kurnool dated 24th october 1932, setting aside in appeal an order of the district munsif of kurnool dated 21st january 1932 and remanding execution application no. 76 of 1932 to that court for further disposal in the light of the observations made by him. the application was one made under order 21, rules 64 and 66, civil p.c. the prayer in that application was that the court may be pleased to set aside its previous order dated 17th november 1931 and to direct the sale of the mortgaged properties seriatim. the previous order referred to was one which directed that items 1 to 5 should be sold after the other items 6 to 22 were sold. these latter items are those to which the appellant in the district court was.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the District Judge of Kurnool dated 24th October 1932, setting aside in appeal an order of the District Munsif of Kurnool dated 21st January 1932 and remanding execution application No. 76 of 1932 to that Court for further disposal in the light of the observations made by him. The application was one made under Order 21, Rules 64 and 66, Civil P.C. The prayer in that application was that the Court may be pleased to set aside its previous order dated 17th November 1931 and to direct the sale of the mortgaged properties seriatim. The previous order referred to was one which directed that items 1 to 5 should be sold after the other items 6 to 22 were sold. These latter items are those to which the appellant in the District Court was entitled, and that order was passed apparently after a notice, to settle the sale proclamation was issued, but served only by affixture so far as the appellant in the District Court was concerned. It was on this ground that he asked the District Munsif to set aside his previous order and pass a revised order ordering the sale in a different manner.

2. On appeal the District Judge was of opinion that the District Munsif ought to have considered the application to set aside the previous order on its merits instead of dismissing it summarily on the ground that the previous order would stand good till set aside by a higher Court. The present appeal is by the owner of items 1 to 5 in whose favour the previous order dated 17th November 1931 was passed and the present appeal is opposed by defendant 3 who was the appellant in the District Court. The main argument in appeal is that District Judge had no jurisdiction to entertain an appeal from the order in execution. The order of the District Munsif was one passed on an application made under Order 21, Rules 64 and 66, and this order, it is contended, cannot be regarded as a judicial order, from which an appeal can be preferred, but merely an administrative order concerned with the minutiae of the sale proceedings. This contention appears to be right. There is nothing in the Code which entitles a party as of right to have it declared by the executing Court that the properties liable to be sold are to be sold in any particular order. That is a matter of administration and it does not affect the real rights of the parties so far as the decree is concerned, for, under the decree ex hypothesi, all the properties brought to sale are liable to be sold, and no one can question as a matter of right the order in which properties are to be sold; and it does not appear that this can be questioned in appeal, merely because the Court directs the sale to take place in a certain order. No rights are infringed as all the properties are liable to be sold under the decree, and the question is really not a question relating to the execution of the decree. Questions of this kind are generally as between the two parties to a decree, namely the decree-holder and the judgment-debtor, and any dispute between co-judgment-debtors alone is prima facie not a matter in which it may be said that it deletes to the execution of the decree.

3. Where the decree-holder does claim something which the judgment-debtor does not dispute there cannot be said to be any question relating to the execution of the decree, which the executing Court has to decide. Even otherwise and even assuming that an appeal lay to the District Judge from the order in question, the District Judge's view that the District Munaif ought to have set aside his previous order if satisfied on the merits of the case implies that the District Munsif had the power to set aside his previous order made in execution, or in other words that the provisions of Order 9, Rule 13 applied to orders made in execution proceedings; though no doubt by the enactment of a new rule in Order 9, viz. Rule 15, the provisions of Order 13 will apply to execution orders under certain conditions. When the District Munsif was approached by the appellant to set aside his previous order the new Rule 15 had not come into existence and the powers of the District Munsif were limited by the law as it was before the new rule was enacted. That was clearly to the effect, that the executing Court had no power to set aside ex parte orders under the provisions of Order 9, Rule 13. It would therefore follow that the learned District Judge was in error in remanding the petition to the District Munsif for fresh disposal, for that order can be justified only if the District Munsif could legally do so. The appeal therefore must be allowed; the order of the District Judge setting aside the order of the District Munsif is reversed. The appellant is entitled to have his costs of this appeal and his costs in the District Court from the contesting respondents (i.e. defendant 3 in the suit).


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