Mookerjee, J.

1. This appeal is directed against an order made by theCourt below by which the value of the property directed to be sold under thedecree has been assessed at a certain figure according to the statement of thedecree-holder. A preliminary objection has been taken to the hearing of theappeal on the ground that the order is not one under sec. 47 of the Code of1908, that it is not a decree within the meaning of sec. 2 of the Code and isconsequently not appealable as such. In support of this view, reliance has beenplaced upon the decision of the Madras High Court in the Case of Sivagami Achiv. Subrahmania Ayyar I. L. R. 27 Mad. 259 (1903).

2. In support of the appeal, reliance has been placed, onthe other hand, upon the case of Sivasami Naickar v. Ratnasami Naickar I. L. R.23 Mad. 568 (1900), Ramessur Proshad Singh v. Rai Sham Krissen (1901) 8 C. W.N. 257 and Ganga Prasad V. Raj Coomar Singh I. L. R. 30 Cal. 617 (1903).

3. In our opinion the decision of the question whether theorder in controversy is a decree within the meaning of sec. 2 of the Code mustdepend upon its nature and contents. The learned Vakil for the Appellant hascontended that every judicial order made in the course of execution proceedingsis an order under sec. 47 of the Code and is consequently appealable as adecree. In view of the decision of this Court in the case of Behary Lal Punditv. Kedar Nath Mullick I. L. R. 18 Cal. 169 (1891) this position cannot possiblybe maintained. It was there pointed out that an interlocutory order in thecourse of the execution proceedings which decides, for instance, a point of lawarising incidentally or otherwise, is not a decree within the meaning of sec. 2of the Code of 1882. It is reasonably plain from the terms of sec. 2 that anorder to be a decree must conclusively determine the rights of the parties. Ifany other view were adopted, the result would be that an appeal would bepreferred against every order in the course of execution proceedings ; in otherwords, proceedings in execution could be arrested at every stage by an appealon behalf of the judgment-debtor. This could hardly have been contemplated bythe framers of the Code. It has also been suggested by the learned Vakil forthe Appellant that if this order is not now set aside, he may be prejudicedlater on, in the event of an application to set aside the execution sale on theground of material irregularity and substantial injury. In our opinion, thisapprehension is entirely groundless. The order does not involve a judicialadjudication of the value of the properties which would be binding upon the partiesin any subsequent proceeding. The application of the judgment-debtor for timewas refused and the Court proceeded to assess the value of the propertyaccording to the statement of the decree-holder. The decree-holder with fullnotice of the assertion of the judgment-debtor that the true value of theproperty is very much higher than what has been mentioned in thesale-proclamation, proceeds to sell it at his risk, and if after the sale anyquestion arises as to the true value of the property it must be determined inthe proceedings under r. 90, Or. 21 of the Code. We may observe that thedecision of the Madras High Court in the case of Sivasami Naickar v. RatnasamiNaickar I. L. R. 23 Mad. 568 (1900), which was followed by this Court in thecase of Ramessur Proshad Singh v. Rai Sham Krissen 8 C. W. N. 257 (1901), hasbeen overruled in the case of Sivagami Achi v. Subrahmania Ayyar I. L. R. 27Mad. 259 (1903), where the learned Judges of a Full Bench of the Madras HighCourt also dissented from the decision of this Court in Ganga Prasad v. RajCoomar Singh I. L. R. 30 Cal. 617 (1903). We are inclined to hold that the viewtaken in Sivagami Achi v. Subrahmania Ayyar I. L. R. 27 Mad. 259 (1903) giveseffect to the true intention of the Legislature. In this view, it is notnecessary to consider the question raised in the cases of Kashi Persad Singh v.Jamuna Pershad Singh I. L. R. 31 Cal. 922 (1904) and Saurendra Mohan Tagore v.Hirruk Chand 12 C. W. N. 542 (1907), namely, to what extent is it obligatory uponthe executing Court to hold an investigation into the value of the propertysought to be sold by the decree-holder. But it may be observed that theobservations of the Judicial Committee in the case of Saadatmand Khan v. PhulKuar I. L. R. 20 All. 412 (1898) indicate that an elaborate investigation isnot necessary. The decree-holder runs a risk if he puts in a valuation which ismanifestly erroneous ; if it is established later on, that the judgment-debtorhas suffered substantial injury by reason of such under-valuation, the sale isliable to be set aside under the provisions of the Code.

4. We may further point out that if the contention of theAppellant prevails, whereas there would be only one appeal under the Code froma decision upon the question of valuation in the course of proceedings forreversal of the sale under Rule 90 of Or. 21, there would be a first and asecond appeal against an order for assessment of valuation antecedent to thesale. This could hardly have been intended by the Legislature.

5. The result, therefore, is that the preliminary objectionis allowed and the appeal is dismissed with costs. We assess the hearing-fee atthree gold mohurs. Let the record be sent down at once.

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Deoki Nandan Singhvs. Bansi Singh (17.02.1911 -CALHC)