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Karnam Venkataseshayya Vs. Karnam Ramaraju and anr. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in156Ind.Cas.141
AppellantKarnam Venkataseshayya
RespondentKarnam Ramaraju and anr.
Excerpt:
civil procedure code (act v of 1903), sections 47, 101, order xxi, rules 64, 66, order ix, rule 13, 15 - order in execution directing that properties shall be sold in certain order--appealability--dispute between judgment-debtors inter se, whether relates to execution--ex parte orders in execution, whether can be set aside. - pandrang row, j.1. this is an appeal from the order of the district judge of kurnool dated october 24, 1932, setting aside in appeal an order of the district munsif of kurnool, dated january 21, 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 xxi, rules 64 and 66, civil procedure code. the prayer in that application was that the court may be pleased to set aside its previous order dated november 17, 1931, and to direct the sale of the mortgaged properties seriatim. the previous order referred to was one which directed that items nos. 1 to 5 should be sold after the other items nos. 6 to 22 were sold. these latter items are those to which the appellant in the.....
Judgment:

Pandrang Row, J.

1. This is an appeal from the order of the District Judge of Kurnool dated October 24, 1932, setting aside in appeal an order of the District Munsif of Kurnool, dated January 21, 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 XXI, Rules 64 and 66, Civil Procedure Code. The prayer in that application was that the Court may be pleased to set aside its previous order dated November 17, 1931, and to direct the sale of the mortgaged properties seriatim. The previous order referred to was one which directed that items Nos. 1 to 5 should be sold after the other items Nos. 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. 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 Nos. 1 to 5 in whose favour the previous order dated November 7, 1931, was passed and the present appeal is opposed by the 3rd defendant who was the appellant in the District Court. The main argument in appeal is that Dirtrict Judge had no jurisdiction to entertain an appeal from the order in execution. The order of District Munsif was one passed on an application made under Order XXI, Rules 61 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 me 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 relates to the execution of the decree. 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 Munsif 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 IX, Rule 13 applied to orders made in execution proceedings; though no doubt by the enactment of a new rule in Order IX, viz, Rule 15 the provisions of Order XIII 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 IX, 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.

2. 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. the 3rd defendant in the suit).


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