Brijraj Kumari vs Radha Jiwan Rai

Harries, C.J.—This is a judgment-debtor''s appeal from an order of the learned Subordinate Judge of Gaya, dismissing an application for valuation u/s 13, Bihar Money-lenders Act. Execution proceedings had been taken out by the decree-holder, and on 24th April 1941 the judgment-debtor applied for valuation of the properties which had been attached in the execution proceedings. The matter came before the Court on 25th April 1941 when the learned Judge dismissed the application for default. It is to be observed that be heard no evidence and made no attempt to value the property or such portion thereof the proceeds of which would be sufficient to satisfy the decree. There had been earlier proceedings which it is now alleged, were valuation proceedings. The order sheet shows that on 24th March 1941 the learned Judge directed that the valuation given by the decree-holder should be entered in the sale proclamation without vouching for its correctness. In short, the valuation, as contemplated by Order 21, Rule 66, Civil P.C., should be entered in the sale proclamation.

Counsel for the appellant has contended that on the plain terms of Section 13, Bihar Money-lenders Act, the Court is bound to value the property or such portion thereof the proceeds of the sale of which are sufficient to satisfy the decree and to direct what portion of the property should be sold in execution. No such valuation has taken place in this case, and this Court has repeatedly held that before a sale can take place, to which the Bihar Money-lenders Act applies, valuation must be made in accordance with the terms of the Act. If such valuation be not made. It is impossible to comply with the provisions of Section 14 of the Act. As no valuation had been made in this case, the ease must, in my view, go back in order that the Judge should determine the valuation of the property in accordance with the provisions of Section 13, Bihar Moneylenders Act.

Mr. Rajkishore Prasad who appeared for the respondent has contended that the Bihar Moneylenders Act has no application to this case. The argument is that the decree in question is based on a promissory note and that the Bihar Moneylenders Act cannot be held by reason of the provisions of the Government of India Act, 1935, to apply to promissory notes. This is a difficult question, but in my view it does not arise in this case. The nature of the decree is not stated, and the decree is not before us. The appellant''s husband had given a promissory note and later the appellant with another was sued and a decree obtained; but it is not clear whether the suit was based on this promissory note or whether the decree is based on a note or on the loan. The point has never been investigated and, indeed, has never been taken throughout these proceedings. Earlier, the parties agreed to instalments which suggests that at that time they clearly understood that the Act applied to this execution. In any event, there is no material on the record upon which we could hold that this decree is a decree on a promissory note, and, therefore, the point does not arise.

Mr. Baj Kishore Prasad also contended that this appeal was not maintainable by reason of the fact that there had been a valuation on 24th March 1941 and from that order no appeal had been preferred as provided by the Bihar Money-lenders Act. As I have already pointed out, the valuation of 24th March 1941, was not a valuation under the Bihar Money-lenders Act but was a valuation as contemplated in Order 21, Rule 66, Civil P.C. In my view, it is open to the appellant to challenge the order now under appeal, and as I have said, the property must be valued in accordance with the Act before it is put up for sale. In the result, therefore, I would allow this appeal, set aside the order of the Court below and send back the case to that Court to determine the question of valuation in accordance with law. In the circumstances, I would make no order as to costs of this appeal.

Manohar Lall, J.

I agree.