Pt. Chandra Sekhar Dhar Misra vs Bhagwan Das and Others

Harries, C.J.—This is a judgment-debtor''s appeal from an order of the learned Subordinate Judge of Motihari dismissing his application which had been made under the provisions of Order 21, Rule 90, Civil P.C. The decree-holders held a judgment against, the judgment-debtor appellant and proceeded to execute the same.

On 1st August 1938, the sale proclamation was issued announcing the sale of a number of properties. On 10th November 1938, the sale was held and the properties were sold for an amount less-than the decretal amount.

On 10th December 1938, the judgment-debtor filed an application for setting aside the sale, and the application was stated to be made u/s 47 and Order 21, Rule 90, Civil P.C. It is clear, however, from a perusal of the application that it was one under Order 21, Rule 90, Civil P.C., because it was alleged that the notices and processes had been fraudulently suppressed and that by reason thereof the property had been surreptitiously sold at a grossly inadequate price to the-prejudice of the judgment-debtor. The application eventually was heard by the learned Subordinate Judge of Motihari, and evidence was led by the appellant with a view to showing that the processes had been, suppressed and had never been served.

The learned Subordinate Judge in a careful, judgment has dealt with this evidence and has come to the conclusion that all the processes in this case were duly served.

The reasons, which the learned Subordinate Judge gives for his finding, cannot possibly be challenged and are not seriously challenged in this Court. It is clear that the judgment-debtor had signed the notice under Order 21, Rule 22, Civil P.C., and all he could say, when he was confronted with his signature, was that the signature on the document resembled his own; but he could not remember whether he put his signature on the document. I am not surprised that the learned Subordinate Judge held that it was duly served upon him and that it bore his signature. The learned Subordinate Judge was also satisfied on abundant evidence that the sale had been properly published according to law. In the result the learned Subordinate Judge held that the judgment-debtor had wholly failed to show any irregularity or illegality in the publication and conduct of the sale.

The learned Judge further considered the evidence as to whether any of the properties in question had been sold at an inadequate price and eventually came to the conclusion that only one property, namely Sauna, had bean sold at a price which was inadequate. He valued Sauna at Rs. 1600, whereas it was sold for Rs. 680. In his view the prices obtained for the other properties were fair and reasonable prices. Mr. Raj Kishore Prasad has attempted to challenge the Judge''s finding with regard to one property, namely Narwal Sikatia. The learned Judge proceeded on the basis that this property was encumbered to the extent of Rs. 7000, though one witness stated, that the encumbrance was Rs. 13,000. The learned Judge, after considering the income of this property, came to the conclusion that unencumbered it could not be worth more than Rs. 7600 and Rs. 600 had actually been paid for it.

It was urged that the learned Judge was wrong in not holding that the property was encumbered to the extent of Rs. 13,000; but I cannot see how that can possibly help the judgment, debtor. If the property was encumbered for Rupees 13,000, then clearly the equity of redemption was worth nothing at all, and Rupees 600, was actually paid for it. The findings as to the other properties have not been challenged.

As a result of these findings the learned Subordinate Judge dismissed the application. He pointed out that though a grossly inadequate price had been obtained for one property, that was no ground for setting aside the sale. In order to entitle the judgment-debtor to have the sale set aside, it had to be established that there had been some illegality or irregularity in the publication and conduct of the sale which had resulted in the property being sold at an inadequate price to the prejudice of the judgment-debtor. As the judgment-debtor had failed to establish the irregularities and illegalities alleged by him, his application was bound to fail.

In appeal in this Court an entirely new ground has been taken which was never urged before the Court below and, indeed never even mentioned in the petition under Order 21, Rule 90, Civil P.C. On 15th July 1938, the Bihar Money-lenders Act (Act 3 of 1938) came into force. That Act has now been replaced by the Bihar Money-lenders (Regulation of Transactions) Act, 1939, and Sections 16 and 17 of the old Act are replaced by Sections 13 and 11 of the new Act.

It is to be observed that the new sections are precisely in the same terms as the old sections. Section 16 of the 1938 Act enjoined the Court in the execution proceedings to hear the parties to the decree and to estimate the value of the property attached or of that portion of such property the proceeds of the sale of which the Court considers would be sufficient to satisfy the decree, and Sub-section (2) of the section provides that any person aggrieved by an order passed under Sub-section (1) can appeal to the Court to which appeals from the Court executing the decree ordinarily lie. This section contemplates that the judgment-debtor should make an application for valuation of the property, and in such a case the Court is bound to value, and if it refused to do so or values improperly there is a right of appeal. Section 17 of the old Act then pro-vided that after such valuation the sale proclamation should include only such portion of the property as would be sufficient to satisfy the decree as found in the earlier proceedings and the value of such property as found by the Court.

In the present case the sale proclamation was issued on 1st August 1938, that is after the Bihar Money-lenders Act, 1938, came into force. No application was made to the Court to value the properties or any portion thereof which would be sufficient to satisfy the decree. The sale proclamation contained the value given by the decree-holders, and in due course the properties were sold on 10th November 1938. It is now contended for the first time that the failure to value the properties and to give the value so found in the proclamation of sale constitute an irregularity or illegality in the publication and conduct of the sale which would entitle the Court to set aside the sale under Order 21, Rule 90, Civil P.C. As I have stated, this point is taken for the first time, and we have no findings of fact as to why no such application was made to the Court to value the properties u/s 17, Bihar Money-lenders Act, 1938. It was certainly in force and an application could have been made; but no such application was made. No objection was taken that the properties had not been valued up until the time the sale took place, though the present objection could well have been urged in which case the Court would have been bound to value as directed by Section 16 and proceed with the sale as directed by Section 17 of the 1938 Act. Nothing was done, and we have no means of ascertaining why the sale proceeded in the manner it did. Had the point been taken in the Court below, all the facts would have been investigated, and we would have been in a position to consider the matter on its merits.

In my view the point was not even open to the judgment-debtor in the Court below. The objection that the property should have been valued and the value inserted in a fresh proclamation of sale was one which could have been taken and should have been taken before the sale took place and by an amendment of Order 21, Rule 90, made by this Court it is expressly provided that no application to set aside a sale shall be admitted unless it discloses a ground which could not have been put forward by the applicant before the sale was concluded. The Act was in force, and the Court could have been asked to value, and an appeal lay from its decision. The Court was never asked to value, and no objection whatsoever was taken to the sale proceeding on the old proclamation of sale. If this point had been put forward before the learned Subordinate Judge, he would have been bound to hold that it was a ground that could have been put forward before the sale was concluded and, therefore, was not a ground which could be urged even for the admission of the application. If the lower Court could not have even admitted the judgment, debtor''s application under Order 21, Rule 90, Civil P.C., on the present allegation, how can this Court in appeal reverse the Court below upon this point? If it was not open to the judgment-debtor to raise the matter in the Court below, clearly he cannot raise it in appeal before this Court.

In my judgment it would be wholly wrong to allow the judgment-debtor appellant to raise this mixed question of law and fact at this stage even if there was no legal bar to his doing so. In my view, however, he cannot, by reason of the matters which I have referred, ask this Court at this stage to consider the matter. In any event, it appears clear from the judgment of the learned Subordinate Judge that these properties, with the exception of one, realised their full value, and the inadequacy of price with regard to that one property is not a very serious matter.

For these reasons I hold that this appeal fails and would dismiss it with costs.

Manohar Lall J.

I agree.