JUDGMENT

1. This is a judgment-debtor's appeal from an order dismissing; an objection u/s 47, Civil P.C., to an auction sale. In execution of a simple money decree a house of the judgment-debtor-objector was attached, sometime before 13th December 1931. He did not appear at all to rile any objection to the attachment. Various, steps were taken and notices were issued under Order 21, Rule 50, for the judgment-debtor to appear at the time of the settlement of the terms of the-proclamation of sale; but he did not appear at all. Ultimately the property attached was sold on 19th January 1933, and purchased by the decree-holder. Before however the sale could be confirmed, the judgment-debtor on 18th February 1933, filed an application under Order 21, Rule 90, praying for the setting a side of the sale on the ground of certain irregularities and fraud in conducting and publishing it. Later, on 27th April 1933, but before the sale could be confirmed, he filed another application u/s 47, Civil P.C., objecting to the sale on the ground that the property was the house of an agriculturist and was exempt from attachment and sale u/s 60, Civil P.C. The Court below has dismissed this objection summarily on the ground that it was not maintainable inasmuch as it was filed after the sale had taken place. The appeal has been preferred from this last order.

2. The Court below has relied on the authority of the case in Umed v. Jas Ram (1907) 29 All. 612 in support of the view that the objection was too late. In that case the learned Single Judge relied on Durga Charan Mandal v. Kali Prasanna Sarkar (1899) 26 Cal. 727 and Ram Chhaibar Misir v. Bechu Bhagat (1885) 7 All. 641 both of which can be easily distinguished. Indeed, in the former case, the Calcutta High Court actually held that:

Even the confirmation of the sale was no bar to an application made by the judgment-debtor to have it declared that in execution of such a decree the holding could not be sold, as the question was one relating to the execution, discharge and satisfaction of the decree.

3. The main ground on which the learned Judge held that the objection could not be entertained was that:

In my opinion a judgment-debtor who might have raised objections prior to the sale but who has refrained from doing so, and who might have appealed against the order for sale, has no right after the sale has been carried out to prefer an objection that the property sold was not legally saleable.

4. That case was decided under the provisions of the old CPC (Act 14 of 1882). u/s 284 of that Code the Court could order the sale of any property which had been attached, or a portion thereof. That section did not lay any particular stress on the question as to whether the property was saleable or not. It was held in some cases that such an order was appealable and was tantamount to an order against the judgment-debtor, which necessarily implied that the property was saleable. It was presumably on account of this view that the learned Judge considered that, where a judgment-debtor allows an order for sale to be passed and does not appeal from such an order, he should not be allowed to object to the sale at a later stage.

5. The scheme of the new Civil, Procedure Code is flat identical. Order 21, Rule 61, which corresponds to the old Section 284, is differently worded and authorises the Court executing a decree to order a sale of the property attached by it, or a portion thereof, only if it is liable to sale. Thus, where there is property not liable to sale, Rule 64 would not be applicable. A further difference arises because of the fact that an order under Rule 64 is no longer appealable. The right of appeal arises only when the sale has been confirmed later. It cannot therefore be said under the new CPC that, when an order for sale was made under Rule 64, the judgment-debtor had a right of appeal of which he did not avail himself. Section 60, which is embodied in the substantive part of the Civil Procedure Code,