An appeal does not lie against administrative orders under Order 21 Rule 66.

Kumaraswami Sastri, J.

1. This Letters Patent appeal arises out of an order refusing stay in C.M.A. 108 of 1928 filed against the order of the Subordinate Judge in execution under Order 21, Rule 66, while settling the sale proclamation. Various contentions were raised when the sale proclamation was fixed One was as regards the value of the property and the other was as regards certain encumbranees. There were two encumbrances; one was a mortgage to one Subramama Sastri and the other was the security given to the District Court i the Tanjore Palace Estate Suit, where certain parties withdrew money for Court. As regards the security, the contention on one side was that the Tanjore Palace Suit encumbrances did not subsist and as regards Subramani Sastris mortgage, the contention was that it was not for a cash consideration but as a charge for some running account. It was also contended that there was no mortgage amount due to him and that Subramania Sastri an, the plaintiff consented to sell the property free of encumbrances. This question had to be decided in fixing the proclamation of sale. The Subordinate Judge said that the Tanjore Palace Security was not discharged because then was no order cancelling the security bond. He also said that, as the consent of encumbrances had not been obtained he could not in this suit make the property free of encumbrances, and he in determining the value of the encumbrances assumed it to be only half the amount alleged. This was necessary in his opinion in order to ascertain what the upset price ought to be, and he fixed the upset price having regard to this method of calculation. He also stated that the contentions of both the parties should be mentioned in the sale proclamation so that the purchaser might be in possession of all the material facts which would guide him in purchasing the property. He did not decide any question, because the fact that he directed the notification of what he parties contended rather suggests that what he did was to fix the method of ascertaining what the upset price ought to be, leaving the other questions to the discretion of the purchaser. Again it seems to me that in order to fix the upset price it is not necessary to find oat and decide the market value of the property. Very often the upset price is the price at which the auctioneer has to begin and the Judge is not bound to close the sale because the bid exceeds or is a little higher than the upset price. In the present case the fact that the Judge was of opinion that it was unnecessary to find out the market value of the property rather suggests that he took the amount fixed in the previous proclamation only as a tentative price at the beginning and he did not determine that the market value of the property was the value which should be fixed in the sale proclamation.

2. On these facts the question is whether a civil miscellaneous appeal would lie and if the civil miscellaneous appeal would not lie, it is clear that the Letters Patent appeal also would not lie. Order 21, Rule 66, corresponds to Section 287 of the old Civil P.C. with certain modifications. The chief modification is that notice should be given to both parties. It has been held in Sivagami Achi v. Subramania Ayyar [1904] 27 Mad. 259 by a Full Bench of this Court that an order under Section 287 is an administrative order and an appeal would not lie against such an order. The question again arose under Order 21, Rule 66, and it was held by a Bench of this Court in Rama Naidu v. Rama Krishna Naidu A.I.R. 1924 Mad. 527 that the change in the new Code does not alter the character of the proceedings and though the Judge settles the proclamation it is still an administrative order, In Ramanathan Chettiar v. Venkatachallam Chettiar, A.I.R. 1923 Mad. 619 it was held that an order fixing the upset price is not appealable as it is an administrative and not a judicial order. In this connexion I may also refer to Tawker & Sons v. Harsookdoss Chou