Soorianarayana Chettiar vs Shenbagathammal on 17 March, 1944
7. Then the next point for consideration is whether not having appeared in Court after he was made aware of the execution proceedings and after he was validly served with notice Under Order 21, Rule 66 it would be open to him to raise the objection that the properties could not be sold. Whatever might be said, with regard to the order directing attachment which was passed without notice the order passed on 2nd June 1942 directing the sale of the properties clearly amounts to a finding that the properties were liable to be sold and could be sold in execution of the decree. That order therefore might operate as res judicata in which case the proper course for the judgment-debtor would be to file an appeal against the order directing the sale. As pointed out in Maharajah of Cochin v. Thupran ('41) 28 A.I.R. 1941 Mad. 861 at p. 794, some of the matters decided by the Court in approving the sale proclamation are, of course, administrative only, but the question as to whether the decision of the Court would be final or not will depend upon the nature of the decision. The decision alleged to have been made in this case, the correctness of which is questioned, is the decision on the point whether the properties could be sold or not. The Court had necessarily to decide whether the property could be sold or not before it directs the sale of the properties. Though the question could be decided before an order for attachment could be made, still it must necessarily be decided at the time when the order directing the sale is passed. In this case, the will had been produced and the decree-holder's contention was that the right under the will was capable of being attached and sold, as is clear from the endorsement on the execution petition made at the time of its representation and referred to above.