JUDGMENT 1. This is an appeal from an order passed in certain execution proceedings by the Subordinate Judge of Patna, on the 7th of this month, refusing an application made by the judgment-debtor, who is the Appellant before us, for stay of sale and the issue of a fresh sale-proclamation. The circumstances under which this application was made were as follows:-- There was a suit brought by the decree-holder against the judgment-debtor upon a mortgage, under which, on the 31st May 1900, he obtained a decree for 11,023,147 rupees, with the ordinary direction that the property, the subject of the mortgage, should be brought to sale in the event of the non-payment of the decretal amount. From that decree both parties appealed to this Court; but pending the hearing of the appeals the decree-holder took out execution under his decree and the mortgaged properties were advertised for sale. An objection in those proceedings was raised by the judgment-debtor to the validity of the sale-proclamation, on the ground that the statements contained therein as to the value of the property were incorrect. By an order of the 10th June of this year that objection was overruled in the Court below. Then on the 13th June the appeals to this Court against the decree in the suit came on for hearing and in the result this Court altered the decree of the Court below and made its decree in favour of the mortgagee for a sum of 11,075,474 rupees, 4 annas 11 pies. By that decree the period for the redemption of the mortgage was also extended for three months. On the 4th October 1901 this decree was made absolute. Thereupon on the 5th October application was made by the decree-holder in the Court below for execution of the decree of this Court. Upon that application the 16th December instant was fixed for the sale of the mortgaged property and the usual sale-proclamation was drawn up. On the 4th October 1901 this decree was made absolute. Thereupon on the 5th October application was made by the decree-holder in the Court below for execution of the decree of this Court. Upon that application the 16th December instant was fixed for the sale of the mortgaged property and the usual sale-proclamation was drawn up. The proclamation was not however published on the property affected until the 14th November and on the 3rd December the judgment-debtor came in and took objection to it upon a ground the same as that disposed of by the order of the 10th June, referred to above, namely, that the valuation of the properties contained in it was incorrect and in many instances grossly inadequate: the further objection was also taken that the properties were in several instances misdescribed in such a manner as to render their identification by intending purchasers extremely difficult. This application was refused by the order now under appeal for a reason to which we shall presently refer more particularly. In the meantime on the 15th November, the day after the publication of the sale-proclamation on the property, the judgment-debtor had preferred an application to the Court below asking for a transfer of the execution proceedings from the Patna to the Gaya district on the ground that out of the sixty properties which were the subject of the mortgage and which it was proposed to bring to sale, only two of comparatively insignificant value were situated in the district of Patna, the remainder being situated in the Gaya district. It was argued that it would be more beneficial to the interests of the parties concerned that the sale should take place in the district in which the greater number of the properties were situated. This application, however, was rejected. There was then an appeal to this Court against the order of rejection which is we are informed at, the present time still pending. Then on the 28th November the judgment-debtor applied to this Court for a stay of sale pending the disposal of that appeal but his application was refused. 2. This application, however, was rejected. There was then an appeal to this Court against the order of rejection which is we are informed at, the present time still pending. Then on the 28th November the judgment-debtor applied to this Court for a stay of sale pending the disposal of that appeal but his application was refused. 2. We refer here to this application for transfer and what followed upon it in connection with the contention of the Respondent in the present appeal, to which I shall come later on, that the Appellant if otherwise entitled to relief in respect of the alleged errors in the sale-proclamation ought not now to be allowed to obtain it having regard to the circumstance that when he applied to the Court on the 15th November he took no exception to the sale-proclamation but asked for relief of a different character. 3. Turning now to the order which is before us in appeal. The Court by that order declined to enter into the question whether the objection taken by the judgment-debtor to the sale-proclamation were or were not well-founded because in its view as it is expressed in the order "it might well be said that the present application for execution is virtually a continuation of the previous application," the application that is to say for the execution of the lower Court's decree in the course of the proceedings under ?which the order of the 10th of June was passed which, as mentioned above, dealt with the question of valuation. 4. In this view, however, we are unable to agree and indeed it has hardly been contended here that it was maintainable. It is clear to us that the effect of the order of the 10th June was nullified by the decree of this Court of the 13th of that month. That decree was a new decree and not one merely in affirmation of the decree of the Court below. It is clear to us that the effect of the order of the 10th June was nullified by the decree of this Court of the 13th of that month. That decree was a new decree and not one merely in affirmation of the decree of the Court below. It materially altered the position of the parties and superseded the decree of the lower Court and all that had been done in pursuance of it: nor is there any question that the application for execution now pending and out of which the present appeal has arisen is a new and independent application founded entirely on the decree of this Court or that the sale-proclamation now in question is a new proclamation, The point is however not one upon which we need dwell further, for the learned counsel for the Respondents did not as I have said seek to support the order in this respect. 5. The two questions which were mainly discussed before us were whether an appeal lies against an order of the kind now in question and whether if it does the Appellant is entitled to the relief which he claims by his appeal in view first of his having abstained from taking exception to the sale-proclamation when he applied to the Court below on the 15th November and then of his not having raised his objections to the proclamation at the time when it was being prepared. 6. It was contended that the order does not come within the purview of the definition of "decree" contained in sec. 2 of the CPC and that as no appeal against such an order is provided for by sec. 588 of the Code no appeal lies. In support of this contention reference was made, firstly, to the case of Nihal Chand v. Rameshari Dasse ILR 9 Cal. 214 (1882) where this Court held that an order staying execution of a decree under sec. 243 of the Code was not an appealable order, firstly, because such an order did not come within the purview of sec. 244, and then that it did not amount to a decree as defined in sec. 2. 214 (1882) where this Court held that an order staying execution of a decree under sec. 243 of the Code was not an appealable order, firstly, because such an order did not come within the purview of sec. 244, and then that it did not amount to a decree as defined in sec. 2. The case, however, was decided in the year 1882 with reference to the provisions of the then existing CPC (Act X of 1877) and it might perhaps be sufficient to say that since then the Code has been amended in such a manner as to bring an order staying execution within the definition of a decree. But on other grounds the decision was dissented from in O. Steel & Co. v. Ichchamoyi Chowdhurain ILR 13 Cal. 111 (1886) which was followed in Lingum v. Kandula ILR 20 Mad. 366 (1896) so that the case of Nihal Chand v. Rameshari Dassee ILR 9 Cal. 214 (1882) cannot, we think, be now regarded as an authority for the position for which it was cited. The order in question there was moreover an order of a different nature from that now before us. Then reference was made to Hulas Rai v. Pirthi Singh ILR 9 All. 500 (1887) where the order appealed against allowed the deposit in Court of a certain sum of money out of time. The learned Judges who decided the case viewed this order as a mere ministerial act which could have no ulterior effect upon the rights of the parties and therefore disallowed the appeal. But that is not we think the nature of the order now under consideration. We were next referred to Behary Lall Pundit v. Kedar Mullick ILR 18 Cal. 469 (1891). There a decree having been compromised, the decree-holder afterwards alleging that the compromise had been brought about by fraud sought to put the decree into execution as if no compromise had been effected and the question arose whether the remedy of the decree-holder was by way of suit or might be pursued by a proceeding in execution. The Subordinate Judge took the latter view and ordered that the case be tried on its merits. The Subordinate Judge took the latter view and ordered that the case be tried on its merits. It was from this order that the appeal was preferred to the High Court and it was held that no appeal lay, the learned Judges regarding the order as one which merely determined incidentally a point of law arising in the course of the proceedings. But they say in the course of their judgment "We think that the only appealable order is an order refusing an application or granting relief" and if this be taken as a test, it would seem to justify the view that the order now before us, inasmuch as it refuses an application, is appealable. So far then as the authorities are concerned upon which the Respondent relied, we do not think that they sustain his contention. On the other hand the learned counsel for the Appellant relied on Siva Sami Naickar v. Ratna Sami Naickar ILR 23 Mad. 568 (1900) which is directly in point. There, as here, the application to the lower Court was for an order that a sale under an execution should not be proceeded with on the ground that in the sale-proclamation the value of the property had been under-estimated. What the learned Judges (White, C.J., and Subramania Ayyar, J.) then said was "we are therefore thrown back on sec. 244 and have to say whether the question raised before the Subordinate Judge related to the execution. Without attempting to lay down any general rule applicable to all orders passed in execution proceedings it is sufficient to say that the order was made with reference to a question which related to the execution and consequently the order made is appealable." If this case was correctly decided, as we think it was, then clearly the objection to the competency of the present appeal must fail. 7. It was indeed contended that It could not have been the intention of the Legislature to render all orders, irrespective of their nature made in relation to the execution of a decree appealable. This may be conceded and certain of the cases cited by the learned counsel for the Respondents afford examples of non appealable orders. Whether it be expedient to attempt to generalize on the question may be doubtful, though the test laid down by Banerji, J., in Jogodishury Debea v. Kailash Chundra Lahiry ILR 24 Cal. This may be conceded and certain of the cases cited by the learned counsel for the Respondents afford examples of non appealable orders. Whether it be expedient to attempt to generalize on the question may be doubtful, though the test laid down by Banerji, J., in Jogodishury Debea v. Kailash Chundra Lahiry ILR 24 Cal. 739 (1897) would we think probably be found sufficient in most if not all cases. But however that may be, it appears to us that when the effect of an order is to determine the rights of a party with respect to a matter material to the due execution of the decree there is an appeal. A right which the judgment-debtor we think enjoys, is to have as nearly as may reasonably be, a just and true valuation placed upon his property before it is sold : another is to have the property to be sold described in the sale-proclamation with reasonable accuracy. That the former is material to the due execution of the decree is now settled by Saadatmand Khan v. Phul Kuar L.R. 25 I.A. 146 (1898) and it is to be inferred from Aruna Chellam Chetti v. Aruna Chellam Chetti L.R. 15 I.A. 171 (1888), that the latter also is material. The case last mentioned also shows that the time for raising objections of the kind now in question is before the sale and that if not then taken the judgment-debtor may lose the right to avail himself of them for the purpose of having the sale afterwards set aside. The effect, therefore, of the order now under consideration was not only to debar the judgment-debtor from the exercise at the proper time of a right which the law confers upon him, but also to determine for the purposes of the sale that the valuation placed upon the property by the judgment-creditor was correct. We think, therefore, that for these reasons, as well as upon the authority of Siva Sami Naickar v. Ratna Sami Naickar ILR 23 Mad. 568 (1900) the appeal lies. 8. That being so, the question which remains for decision is whether we ought, as we are asked to do, to remit the case to the Court below in order that it may hold the investigation contemplated by sec. 287 of the Code. 568 (1900) the appeal lies. 8. That being so, the question which remains for decision is whether we ought, as we are asked to do, to remit the case to the Court below in order that it may hold the investigation contemplated by sec. 287 of the Code. As we have already had occasion to observe, the order of the Subordinate Judge has not been supported by the learned counsel for the Respondent upon the ground upon which it proceeded but he contended that having regard to the conduct of the judgment-debtor and more particularly to the nature of the application of the 15th November to which reference has been made above, he has disentitled himself to the relief he now seeks. It was said that if he intended to question the valuation of his property or the manner in which it was described in the proclamation of sale he ought to have brought his objections to the notice of the Court at all events when he applied to it on the 15th November and that not having done so, and having then confined his objections to the sale to a matter of a different character, he ought not now to be allowed to object either to the valuation or description of the property. We are however unable to accept this contention. To our minds the course taken by the judgment-debtor was not unreasonable. The first point which he sought to secure and in doing so he was at least within his rights, was that the sale should take place in the district in which the greater part of the property was situated. Whether his application was one which ought to have succeeded is not a question with which we are now concerned. The first point which he sought to secure and in doing so he was at least within his rights, was that the sale should take place in the district in which the greater part of the property was situated. Whether his application was one which ought to have succeeded is not a question with which we are now concerned. But it was not we think an unreasonable application or one which can be treated as if it ought never to have been made and so long as it was pending it would have been premature we think to ask for the correction of the sale-proclamation, for if the transfer of the execution proceedings had been made it would have been necessary for the Court to which they were transferred to issue a fresh proclamation, and we do not think therefore that it was incumbent upon the judgment-debtor to ask the Court when he applied for a transfer to decide upon objections of such a nature that if the object of the application had been secured, its decision would have been nugatory. The question of the transfer has not yet, as has been already observed, been finally dealt with by this Court, the appeal against the order refusing the transfer not having been yet decided. Immediately, however, upon the refusal of this Court, on the Judgment-debtor's application to stay the sale, which was on the 28th November, he went to the Court below with the application out of which the present appeal has arisen. So that he has not, we think, been guilty of laches nor has he, in our opinion, conducted himself, otherwise in such a manner as to debar him from seeking relief in the form in which he now claims it. 9. It was further urged that objections to the sale-proclamation such as the present ought to be taken, if not at the time when the proclamation is being prepared, at all events at the earliest possible moment. But while we agree that they ought to be raised as soon as possible, we do not think that there has been undue delay on the part of the judgment-debtor in the present case. But while we agree that they ought to be raised as soon as possible, we do not think that there has been undue delay on the part of the judgment-debtor in the present case. As to its having been incumbent upon him to take his objections at the time when the sale-proclamation was being prepared, so far as we are aware the proclamation is usually prepared without notice to the judgment-debtor and behind his back, and he is not likely therefore to receive any intimation of its contents (nor is it suggested that in the present case he did previously receive any such intimation) until it is fixed up in the Court house or Collectorate or is published upon the property. However faulty this may be in practice, it would obviously be unreasonable so long as the practice subsists to visit upon the judgment-debtor the consequences of his not having done that which he has not been given the opportunity to do. 10. Some reference was made to the materials placed before us to enable us to form an opinion as to whether there was any probability of the judgment-debtor's succeeding in the Court below in proving that the contents of the sale-proclamation are inaccurate. We do not, however, think that it is necessary or indeed desirable that we should at the present stage express any opinion either upon their value or effect. The question is one for the decision of the lower Court. 11. That Court having refused, as we think without sufficient cause, to discharge the duty imposed upon it by sec. 287 of the Code of Civil Procedure, its order must be set aside and the case remitted to it in order that it may dispose of it in accordance with law. The appeal therefore succeeds and must be decreed with costs. We assess the hearing fee at eight gold mohurs. We are asked to direct that pending the decision of the case by the lower Court the sale in execution should be stayed. We order accordingly and we also direct at the request of the Respondents' learned vakil that the execution records be remitted to the lower Court with as little delay as possible.