Gunjari Mahatani vs Nil Kamal Pande

Harries, C.J.—This miscellaneous second appeal and civil revision are directed against an order of learned Munsif dated 2Ist June 1939, passed in an execution case directing the immediate sale of certain property. The judgment-debtor-appellant appealed against that order to the Court of the learned Additional District Judge of Purulia, and that appeal was dismissed by an order of the learned Additional District Judge, dated 16th March 1940. Against that order of the learned Additional District Judge this second appeal from order has been preferred, and the application for revision is in the alternative, that is to say, it is an application directed against the order of the learned Munsif in the event of this Court holding that no appeal lies.

In my view it is unnecessary to consider whether an appeal lies or not in this case, because the facts of the case make it necessary that this Court should interfere. If no appeal lies, then we would be bound to interfere in our revisional jurisdiction, and that being so, it is unnecessary definitely to decide whether an appeal or revision lies in this case.

The decree-holder-respondent put into execution a decree for Rs. 1071-0-3 and attached eleven lots of the appellant''s property. The execution case was a protracted one, and the sale proclamation of all the eleven lots was published on 15th May 193& Thereafter the judgment.debtor applied and obtained two adjournments postponing the sale on payment of small sums on each occasion towards the decretal dues. The judgment-debtor in obtaining these adjournments waived the necessity of the issue of a fresh sale proclamation.

On 10th June 1939, the judgment-debtor filed an application u/s 11, Bihar Money-lenders Act, for permission to pay the decretal sum in instalments; but this application was refused by the learned Munsif. Subsequently on 16th June 1939, she filed another application u/s 13, Bihar Money-lenders Act, claiming that the properties should be valued and only such part of the properties sold as would be sufficient to satisfy the decretal amount. The learned Munsif acceded to this application and proceeded to value the properties, and evidence was given by the parties. The learned Munsif fixed the valuation of lot No. 7 at Rs. 1100, and the parties agreed that this lot alone should be sold in satisfaction of the decree as its value was sufficient to satisfy that decree. Immediately afterwards on the very same day the learned Munsif put up lot No. 7 for sale, and it was sold to the decree-holder for Rs. 1069-1-9-in full satisfaction of his dues.

While the sale was going on, the appellant-judgment-debtor filed a petition before the learned Munsif claiming that the property could not be sold until a fresh sale proclamation had been issued. The property, however, was sold in the manner I have stated. The learned Additional District Judge in appeal held that no appeal lay to him and consequently refused to interfere.

It has been urged on behalf of the judgment-debtor that the property which was sold, namely lot No. 7, could not be sold without the issue of a sale proclamation containing the details which are required by Section 14, Bihar Money-lenders Act. Section 13 of that Act enjoins the Court when application is made to it to value the property and of that portion of such property the proceeds of the-sale of which the Court considers will be sufficient to satisfy the decree. On application being made to the Court, it valued lot No. 7 at Rupees 1100 which was sufficient to satisfy the decree. When the Court has valued the property u/s 13, then the provisions of Section 14 of the Act come into operation. That section is in these terms:

Notwithstanding anything to the contrary contained in any other law or in anything having the force of law the proclamation of the intended sale of property in execution of a decree passed before or after the commencement of this Act in respect of a loan or the interest on a loan shall include only so much of the property of the judgment-debtor the proceeds of the sale of which the Court considers will be sufficient to satisfy the decree and shall state the value of the property or portion of the property to be sold, as determined u/s 13; and such property or portion of the property, as the case may be, shall not be sold at a price lower than the price specified in the sale proclamation...

This section makes it clear that after the property has been valued or such portion of it as is sufficient to satisfy the decree, a sale proclamation of: the actual property to be sold must be drawn up, and in it must be stated the value of the property as determined by the Court u/s 13. It appears to me that whatever has happened earlier, once an application is made u/s 13, a fresh sale proclamation must be drawn up u/s 14 after the property actually to be sold has been decided upon and its value fixed.

In the present case it is common ground that no such proclamation was drawn up, and the property was in fact straightway sold to the decree-holder. It has been urged on behalf of the decree-holder-respondent that the judgment-debtor had waived the necessity of a fresh sale proclamation. As I have stated earlier, the judgment-debtor had obtained two adjournments of the pro-posed sale of the eleven lots and had waived the necesssity of a fresh sale proclamation. Had the sale which actually took place been the sale of those eleven lots no fresh sale proclamation would be necessary. However, application was made u/s 13 of the Act, and lot No. 7 was valued and that alone directed to be sold.

Once the Court had arrived at that conclusion and valued the property, it was, in my view, bound to issue a fresh sale proclamation of that property and that property alone, and such proclamation was bound to contain the value of that property as ascertained by the Court. The waiver of a fresh sale proclamation in the earlier stages of this case cannot possibly be construed as a waiver of an entirely new sale proclamation which Section 14 of the Act requires. In the earlier stages when a fresh sale proclamation was waived no application u/s 13 of the Act had been made, and the moment that was made the parties'' rights were governed by the statute.

It was urged at one stage that the judgment-debtor had no right to apply for valuation u/s 13 of the Act because she had obtained adjournments of the earlier sale and waived the need of a fresh sale proclamation. Whatever be the merits or demerits of such a contention it is unnecessary to consider. An application was made, and this point was never raised in opposition. An order was passed by the learned Munsif fixing a valuation and directing what property should be sold, and that order has never been challenged by the decree-holder.

In my view, the learned Munsif was bound to direct the issue of a new sale proclamation containing the matters set out in Section 14, and he had no right or jurisdiction whatsoever to direct an immediate sale without first directing the issue of a fresh sale proclamation. In my view the order of the learned Munsif dated 21st June 1939, directing an immediate sale cannot be sustained and must be set aside.

In the result, therefore, I set aside the order of the learned Munsif and direct that the execution proceedings should be proceeded with from this stage in accordance with law. In the circumstances I make no order as to costs upon the appeal or the petition for revision.

Manohar Lall J.

I agree.