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Judgment
Harries, C.J.—This is a second appeal from an order of the learned District Judge of Gaya upholding an order passed by the learned Munsif in proceedings u/s 47, Civil P.C. The present appellant filed a petition u/s 47, Civil P.C., objecting to the sale by the decree-holders of certain properties in execution of a decree for mesne profits held by them against the appellant. There were two grounds of objection: (1) that only part of the property sought to be sold should be sold; and (2) that the decree for mesne profits was a nullity, and execution upon it could not proceed. The learned Munsif who heard the objections dismissed them, and on appeal the learned District Judge upheld the findings of the learned Munsif and dismissed the appeal summarily. Being dissatisfied with that decision this second appeal has been preferred by the judgment-debtor.
To appreciate the points involved, it will be necessary to state the main facts giving rise to the dispute. In 1922 the decree-holder respondents filed Title Suit No. 345 of 1922 in the Court of the learned Munsif of Gaya, claiming possession of certain property and mesne profits. The property was valued at Rs. 300. No objection was taken to the valuation, and eventually on 22nd December 1923, a decree for possession and mesne profits was passed, mesne profits to be calculated from 2nd April 1922, or thereabouts. From the decree of the learned Munsif the present appellant preferred an appeal to the Court of the District Judge. In that appeal no point was taken as to the valuation of the property or as to the jurisdiction of the learned Munsif to hear the suit. The learned District Judge upheld the decision of the learned Munsif and dismissed the appeal. Various proceedings took place, and it was not until 30th September 1936, that a decree for mesne profits was passed which amounted to a sum of Rs. 30,000. There was an appeal from this decree, but that was dismissed, and eventually the decree-holder respondents put the decree into execution. The first. execution proceedings were dismissed after an appeal had been preferred to the District Judge. It appears that an arrangement had been made by the parties whereby it was agreed that lot No. 5 only should be sold to satisfy the decree. The decree-holders had attached a number of properties, and it was held that they could not do so. It is to be observed that lot No. 5 had been valued in the first execution proceedings at Rs. 43,425. It seems that both parties at that time agreed that such was the true value of that property. A second application for execution was filed, and this time in respect of the property known as lot No. 5 only, and in these proceedings the objection giving rise to the present appeal was preferred by the judgment-debtor.
The first point taken by the judgment-debtor was that only such part of the property should be sold the proceeds of which would be sufficient to satisfy the decree. He contended that the true value of the property was Rs. 43,425, and, as the decree was only for Rs. 30,000, a portion only of the property would be sufficient to satisfy the decree. It is to be observed that this is a case which does not fall within the Bihar Money-lenders (Regulation of Transactions) Act, and, therefore, it is not incumbent upon a Court to value the property and to order a sale of part only, if the proceeds of such part would, in the opinion of the Court, be sufficient to satisfy the decree. There are, however, certain provisions in the Code which give a Court discretion to order sale of the part only of the property. In the Courts below the judgment-debtor relied upon Order 21, Rule 17, Civil P.C., and in particular on the proviso thereto by which it is provided that in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree.
As I have said, the parties earlier had agreed that lot No. 5 should be the property to be sold in execution of the decree. That property had been attached in these proceedings and no objection seems to have been made to the attachment thereof. It would appear from the judgments of the Courts below that the Court of first instance was asked to value the property and such portion of it, the proceeds of which would, in the opinion of the Court, satisfy the decree. The Courts, however, point out that as this case does not fall within the provisions of the Bihar Money-lenders Act, they are not called upon to value the property before issuing a proclamation. The Court has only to state in the proclamation the value of the property as given by the decree-holders and the judgment-debtor. This is clear from Order 21, Rule 66, Civil P.C., as amended by this Court. In this Court, however, it has been contended that the learned Munsif should have acted under the provisions of Order 21, Rule 64, which provides:
Any Court executing a decree may order that any property in respect of which it has made an order of attachment and which is liable to sale, or such portion thereof as may seem necessary to satisfy the -decree, shall be sold, and that the proceeds of such sale, or a sufficient portion thereof, shall be paid to the party entitled under the decree to receive the same.
This rule does give a Court executing a decree certain discretion to order the sale of a portion of the property, if it thinks fit. It is to be observed that in the present case the Court of first instance was not asked to act under this order. Counsel for the appellant now complains that the Court did not exercise its discretion properly; but as pointed out by my Lord in argument, the Court below was not asked to exercise the discretion which Rule 64 of Order 21 confers upon it. It was further contended that this case should be remanded in order that this new point should be considered by the Court below. But it has been frequently held that this Court will not entertain a point for the first time in second appeal if that point involves any further investigation of fact. Whether the Court should or should not order the sale of a portion of the property must depend upon whether there is any reasonable probability of sale of a portion of the property being sufficient to satisfy the decrial amount. In my view, it is not open now to the appellant to raise this point and ask us to remand the case to the Court below to be considered from this new point of view.
It was contended that the parties had agreed that the value of the property in 1937 was over Rs. 43,000. That may be so, but it does not follow that it was worth that sum when this execution application was filed in the following year. In any event, it is common knowledge that in forced sales a property frequently does not realise its true value, and, in my view, it cannot be said that the Court below was wrong in dismissing the objection as to the sale on this ground.
The second objection taken was that the decree was a nullity by reason of the fact that it was passed by a Court having no jurisdiction to pass the same. As I have stated, the original suit was valued at Rs. 300, and it is now said that this was a gross and deliberate under-valuation. In later proceedings the plaintiff valued this very same property at a very much higher figure�a figure which would take it entirely outside the jurisdiction of the learned Munsif. It must be remembered that when this suit was valued it was open to the defendant to take objection as to the valuation, but this he did not do. It appears that the defendant himself had purchased this very property and that he had only paid Rs. 300 for it. That being so, I can well understand that he raised no objection. In the appeal to the learned District Judge no objection was taken, and it is only now in execution proceedings that it is said that the decree is a nullity and can be disregarded by the execution Court.
There can be no doubt that in certain circumstances a Court executing a decree may come to the conclusion that the decree is a nullity. But those are cases where the want of jurisdiction of the Court which passed the decree is apparent on the face of the record. Such is not the case here. However, it is argued that the value of the property in suit was more than Rs. 2000 and, therefore, the Munsif had no jurisdiction whatsoever to hear the suit. It is to be observed that it is somewhat difficult for the appellant to contend that the real value of this property was more than Rs. 300 at the date of the suit when he himself had purchased it shortly before for that amount and had raised no objection whatsoever to the valuation either before the learned Munsif or in the Court of the District Judge. However, even if it is assumed that the property was worth more than Rs. 2000 when the suit was instituted in the Court of the learned Munsif, yet I am of opinion that the decree obtained cannot be regarded as a nullity and not executable.
Reliance was placed by the appellant upon a Bench decision of the Calcutta High Court in Rajlakshmi Dasi v. Katyayani Dasi 38 Cal. 639 . In that case a suit was intentionally undervalued, but the defendants raised no objection as regards valuation and the suit was tried. An appeal was filed before the District Judge, instead of before the High Court, in consequence of the undervaluation, and the District Judge decided the appeal by a consent decree. In subsequent proceedings it was held that if a Court has no jurisdiction of the subject-matter of the litigation, its judgments and orders, however precisely certain and technically correct, are mere nullities and not only voidable but void and have no effect either as estoppel or otherwise, and may not only be set aside at any time by the Court in which they are rendered, but be declared void in every Court in which they may be presented. At first sight this case appears to support the appellant''s contention, but it is to be observed that it is clearly distinguishable from the case now under consideration. In the Calcutta case Rajlakshmi Dasi v. Katyayani Dasi 38 Cal. 639 the person claiming that the decree was void was not a party to the proceedings in which the consent decree was made. Further, the decree made by the learned District Judge was made by consent and it was pointed out that no consent can ever give a Court jurisdiction. Lastly, it is to be observed that in this case Section 11 of the Suits Valuation Act was not referred to, possibly because it might have no application to the facts of that particular case. Reliance was also placed on a Special Bench decision of this Court in Mt. Urehan Kuer Vs. Mt. Kabutri, in which the Court expressed approval of an observation made in a Bombay case, Ambadas Harirao Karante Vs. Vishnu Govind Boramanikar and Others, , in which case it was said that mala fide under-valuation or over-valuation might cause the decree to be a nullity and this Court agreed with that observation. In my judgment, the present case is not governed by either of the two cases to which I have j made reference. It appears to me that the provisions of Section 11, Suits Valuation Act, clearly establish that the decree under execution in this case is not a nullity. That section is in these terms:
(1) Notwithstanding anything in Section 99, Civil P.C., an objection that by reason of the overvaluation or under-valuation of a suit or appeal, a Court of first instance or lower Appellate Court which had not jurisdiction with respect to the suit or appeal exercised jurisdiction with respect thereto shall not be entertained by an Appellate Court unless:
(a) the objection was taken in the Court of first instance at or before the hearing at which issues were first framed and recorded, or in the lower Appellate Court in the memorandum of appeal to that Court, or
(b) the Appellate Court is satisfied, for reasons to be recorded by it in writing that the suit or appeal was over-valued or under-valued, and that the overvaluation or under-valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits.
(2) If the objection was taken in the manner mentioned in Clause (a) of Sub-section (1), but the Appellate Court is not satisfied as to both the matters mentioned in Clause (b) of that Sub-section, and has before it the materials necessary for the determination of the other grounds of appeal to itself, it shall dispose of the appeal as if there had been no defect of jurisdiction in the Court of first instance or lower Appellate Court.
(3) If the objection was taken in that manner and the Appellate Court is satisfied as to both those matters and has not those materials before it, it shall proceed to deal with the appeal under the rules applicable to the Court with respect to the hearing of appeals but if it remands the suit or appeal, or frames and refers issues for trial, or requires additional evidence to be taken, it shall direct its order to a Court competent to entertain the suit or appeal.
From this it is clear that an objection as to jurisdiction on the ground of over or under-valuation cannot be entertained by an appellate Court unless certain conditions are complied with. If the appellate Court cannot entertain the objection it must proceed to hear the appeal and decide it upon its merits; yet it is said that if it does so the decree is a nullity. In the present case there was an appeal to the Court of the District Judge, and if a point of jurisdiction had been taken, the present appellant would have been in great difficulty because he had neither taken the point at any stage in the Court below nor in the memorandum of appeal to the District Judge. In those circumstances the Court would have refused to entertain any such objection. Even if the point is taken at the proper time in the trial Court, it is still open to the appellate Court to proceed with the appeal and to decide it upon its merits if it is satisfied that the under, valuation has not worked to the prejudice of the other party. In short, Section 11, Suits Valuation Act, governs in certain cases the question of whether a decree passed by a Court without jurisdiction is or is not void. In the present case no objection was taken at any stage and the District Judge on appeal confirmed the decree of the learned Munsif. In my view, a decree obtained in such circumstances is not a nullity even if it be admitted that the Munsif had no jurisdiction to hear the suit by reason of under-valuation. The precise point arose for consideration in Mt. Jagtaram Kuer Vs. Mt. Munder Kuer, , which was decided by a Bench of this Court and which is of course binding upon us. In that case there had been an under-valuation, but no objection on that Bore had been taken at the early stages of the proceedings which led up to the decree. It was held that the objection to the validity of the decree preferred by the judgment-debtor u/s 47 Civil P.C. 1908 , in execution proceedings was not maintainable. Mohamad Noor, J. observed:
When the want of jurisdiction of the Court which passed the decree is apparent on the face of the record the decree is a nullity and need not be set aside. But Section 11, Suits Valuation Act, is an exception to the general rule; that is to say, if there is under-valuation or over-valuation and in consequence thereof a Court proceeds to try the suit without any objection being raised by the defendant the matter is, except under certain circumstances, concluded even for the purpose of appeal. Much less can it be re-opened in a collateral proceeding after the decree has been passed and has become final.
This case, to my mind, is clear authority for the proposition that in circumstances such as exist in the present case objection cannot be taken in execution proceedings that the decree originally obtained in the suit was a nullity. For these reasons I am satisfied that the orders passed by the Courts below were proper and in accordance with law and I would therefore dismiss this appeal with costs. The interim stay order granted in this case will be vacated.
Chatterji, J.
I agree.