Kedar Nath vs Banwari Rai

Sinha, J.—This is an appeal from the orders of the learned Subordinate Judge of Chapra confirming those of the Munsif of the same place, fixing the value of certain properties which are to be sold in execution of a mortgage decree. (After adverting to the preliminary objection raised by the counsel for respondent that no second appeal lay in this case, his Lordship took up that preliminary question, for decision in the first-instance.) It is the settled law, at least so far as this Court is concerned, that the order of the executing Court valuing the property of the judgment-debtor to be sold in execution of the decree is a judicial order, but has not the effect of a decree, and is therefore not appealable: see the cases in Deokinandan Singh v. Dhakeswar Prasad Narain Singh AIR 1916 Pat. 90 and Saurendra Nath Mitra v. Mritunjay Banerji AIR 1920 Pat 249. Such an order is not appealable even as an order, inasmuch as it is not contained in the list of appealable orders in Rule 1 of Order 43, Civil P.C., read with Section 104 of the Code. Hence, before the enactment of the Bihar Money-lenders (Regulation of Transactions). Article 7 of 1939, an order fixing the valuation was not appealable at all either as an order or as a decree.

As a matter of fact, this Court considered the matter of valuation of such a secondary importance as not to require any adjudication by the Court at all, and amended Rule 66 of Order 21, Civil P.C., by inserting the proviso in the following terms: "Provided that no estimate of the value of the property, other than those, if any, made by the decree-holder and judgment-debtor respectively together with a statement that the Court does not vouch for the accuracy of either, shall be inserted in the sale proclamation." But on the enactment of the Bihar Money-lenders (Regulation of Transactions) Article 7 of 1939 the matter assumed greater importance inasmuch as by Section 13 of the Act the executing Court was required to come to a judicial decision after hearing the parties as to the value of the property to be sold in execution of the decree. And by Section 14 it was further provided that the property or the portion of the property to be sold in satisfaction of the decree "shall not be sold at a price lower than the price specified in the said proclamation."

Realising that the matter had assumed a greater importance, the Legislature provided for an appeal from the "order" fixing the value of the property. Sub-section (2) of Section 13, Bihar Money-lenders (Regulation of Transactions) Article 7 of 1939, runs as follows: "Any person aggrieved by an order passed under Sub-section (1) may appeal to the Court to which appeals from the Court executing the decree ordinarily lie." It is manifest that the Legislature provided for only one appeal from the orders of the executing Court fixing the valuation of the property and that such an order is not intended to have the force of a "decree." If the Legislature intended that such an order should have the force of a decree admitting of a first and a second appeal, it would have worded Sub-section (2) of Section 13 quite differently. It has not been contencied on behalf of the appellant in this case that the words of Sub-section (2) of Section 13 aforesaid lend themselves to the construction either that an order fixing the value of the property to be sold has the effect of a "decree" or that they specifically provide for a second appeal also. But counsel for the appellant has contended that such an order has the effect of an order passed by the executing Court conclusively determining the rights of the parties in the matter of valuation, and that, therefore, Section 47 read with Section 2(2), Civil P.C., becomes applicable to such an order. It is true that an order fixing the value of the property, or a portion of the property, to be sold in execution of the decree may come within the purview of Section 47, Civil P.C., but every order passed by the executing Court u/s 47 of the Code has not the effect of a "decree."

It is only such orders as conclusively determine the rights of the parties to the decree with regard to any of the matters in controversy between them which can have the effect of a "decree." Now, can it be said that the orders passed by the executing Court u/s 13, Bihar Moneylenders (Regulation of Transactions) Act conclusively determine the rights of the parties? Section 14 only says this that the property shall not be sold at a price lower than the price as determined by the Court u/s 13. That, in my opinion, cannot be said to amount to conclusively determining any of the rights of the parties to the execution proceedings.

There is no provision in the Bihar Money-lenders (Regulation of Transactions) Act to the effect that such a valuation is good for all times. One may easily conceive of circumstances where the valuation, once determined by the Court u/s 13, may not bind the parties for all times, that is to say, so long as the decree has not been satisfied and is capable of execution. Circumstances may so radically affect the value of the property once determined that the Court may have to revise the valuation previously made by itself; for example, a new legislation or the fluvial action of a river or the act of God may affect the value of the property for the better or for the worse to such an extent that it would be manifestly unjust to the parties, or either of them, to hold them fast to the valuation once made by the Court before any of those circumstances supervened.

Hence, in my judgment, the provisions of Sections 13 and 14, Bihar Money-lenders (Regulation of Transactions) Act, do not lend themselves to the construction that the valuation determined by the executing Court conclusively determines any of the rights of the parties so as to attract the provisions of Section 47 read with Section 2(2), Civil P.C. I may also add that it may very well be that the Legislature did not provide for a second appeal from an order determining the value of the property u/s 13, Bihar Money-lenders (Regulation of Transactions) Act taking in view the legal position that the question of valuation is essentially one of fact, and not of law.

Counsel for the appellant has placed great reliance on the decision of their Lordships of the Federal Court in Shyamakant Lal v. Rambhajan Singh AIR 1939 FC. in which their Lordships have held that the order passed by the executing Court is a final order within the meaning of Section 205(1), Government of India Act, 1935. It is enough to say that those observations of their Lordships were made with reference to the provisions of the section aforesaid of the Government of India Act. Their Lordships were not considering the question whether such an order has the effect of a "decree.". In my opinion, therefore, there is no ground for holding that a second appeal lies in such a case. When we heard this appeal, counsel for the parties gave us the impression that there is no decision of a Division Bench of this Court on this point, and we reserved our judgment to consider the question involved in this case.

Subsequently, we have discovered that there are certain decisions of this Court on this point. (Here His Lordship referred to the observations of Agarwala J., made in Mossadi Maharaj v. Anant A.F.A.O. No. 310 of 1941 to an obiter dictum of Meredith J., in Lal Bahadur v. Bishwanath Prasad AIR (1942) 29 to the observations of Manohar Lall and Chatterji JJ., made in Jagadanand Jha v. Shyamsunder Jha A.F.A.O. No. 80 of 1940, and to those of Harries C. J. and Agarwala J., made in Gopal Singh v. Chandra Sekher A.F.A.O. No. 300 of 1941.) Apart from the earlier decisions of this Court, I have come to a decision of my own that no second appeal lies against an order passed by the executing Court determining the value of the property to be sold in execution of the decree. Counsel for the appellant was not able to point out to us any such defect in the orders of the Courts below which would attract the revisional jurisdiction of this Court. In the result, I would dismiss this appeal with costs.

Varma, J.

I agree. The question of valuation of a property sought to be sold in execution of a decree is pre-eminently a question of fact. Moreover, on the language of Sub-section (2) of Section 13, Bihar Money-lenders Act itself and in view of the decisions referred to by my learned brother, no second appeal lies from such an order.