Razia Begam vs Kishundeo Narain Mahtha and Others

Rowland, J.—This is an appeal by the judgment debtor, four of whose properties were sold in execution of a mortgage decree. On an application to set aside the sale of all the properties on the ground of alleged irregularities and inadequacy of price, the Subordinate Judge set aside the sale of two properties, Lots Nos. 2 and 4 of the sale and refused the application and confirmed the pale of the other two, namely Lots Nos. 1 and 3 of the sale. This appeal is against the confirmation of the sale of Lots Nos. 1 and 3. It was objected in the Court below that the processes in execution had been suppressed. This point was found against the judgment-debtor and that finding is not challenged in appeal.

The objection pressed here is that too low a valuation was entered in the sale proclamation in consequence of which the proper-ties have been sold below their value causing loss to the judgment-debtor. The decree-holder had taken out execution of his decree in 1930 and the case came before this Court in Civil Revision No. 36 of 1931. In that case the valuation to be set by the Court on the properties was fixed by the agreement as follows:

Lot No. 1...Rs. 7000 Lot No. 3...� 400 At that time Order 21, Rule 66, Civil P.C., required a value assessed by the Court to be entered in the sale proclamation. This rule was amended with effect from 1st January 1936. Thereafter, its requirements were that the Court should enter in the sale proclamation the valuation placed on the property by the decree-holder and by the judgment-debtor, respectively, and no other valuation. In the present execution the sale proclamation contained an entry of the value as given by the decree-holder and also mentioned the valuation arrived at in the High Court. The decree-holder''s valuation of Lot No. 1 was Rs. 1200 and of Lot No. 3 Rs. 45. These figures as well as the valuation put down in the High Court in the earlier proceeding were entered in the sale proclamation.

This was done in pursuance of an order of the Court, dated 10th October 1936, in Miscellaneous Case No. 199 of 1936 and the order shows that the two valuations were entered in the sale proclamation by agreement of both parties. In my view, it is not now open to the judgment-debtor to contend that the entries regarding valuation in the sale proclamation constituted a substantial irregularity in the proceedings for sale. This I say with reference to the state of the law as it was then at the time of the sale proclamation and of the sale itself which took place on 7th April 1937. Lot No. 1 was purchased by a third party at Rs. 3000 and Lot No. 3 at Rs. 50.

As regards the adequacy of the price fetched, the Subordinate Judge refers to the evidence regarding the value of Lot No. 1 and appears to be of opinion that apart from the valuation on which the parties agreed in the High Court the remainder of the evidence did not support the view that the property was Worth more than Rs. 3000 or that the judgment-debtor had suffered any material loss. He seems, however, to have thought himself bound to hold that the property was worth Rs. 7000 because this value had been placed on it in the High Court six years earlier.

As regards Lot No. 3, this consisted of 4 bighas, 7 kathas 11 dhurs of railway khanta land regarding which there seems to have been practically no evidence before him except the fact that its value had been fixed at Rs. 400 in the High Court. The Subordinate Judge may perhaps have relied on his own experience of the value of arable land and he expresses the opinion that the price seems to be rather a low price. When the proceedings leading up to the sale were found to have been free from irregularity, he held that the sale could not be set aside. Assuming that the law remained as it was at the time of the sale, I think we should clearly be bound to affirm the decision of the Subordinate Judge.

But it is argued for the appellant that we ought to have regard to the provisions of the Bihar Money-lenders (Regulation of Transactions) Act 1939, Sections 13 and 14 and that the sale not being held in accordance with the provisions of those Sections ought to be set aside--Section 13 requires the Court executing the decree to make an estimate of the value of the property of the judgment-debtor which is sought to be sold and of that portion of the property the proceeds of the sale of which are likely to be sufficient to satisfy the decree. Section 14 re-quires that the proclamation of the intended sale shall include only so much of the property the sale of which will be sufficient and shall state the value of the property, or portion of the property, to be sold as determined u/s 13. Further, it enacts that the property is not to be sold at a price lower than the price specified in the sale proclamation unless the decree, bolder consents to forgo so much of the amount decreed as is equal to the difference between the highest amount bid and the price specified for the property in the sale proclamation.

It is contended that these Sections of the Act being retrospective, apply to an execution instituted before the commencement of the Act and that an execution though commenced earlier must be continued in accordance with the provisions of the Act. If indeed the sale proclamation was still to be issued at the time when the Act came into force, I have no doubt that the Act would be applicable and the said proclamation would have to be framed in accordance with its provisions. Even if a sale proclamation had issued and the sale were still to be held and the judgment-debtor asked that the sale should be held in accordance with the provisions of the Act and for that purpose a fresh sale proclamation should be issued, it would be the duty of the Court to comply with that request and issue the sale proclamation and hold the sale in accordance with that Act. This is the effect of the decision in Bishun Singh Vs. Palakdhari Singh and Another, but in the present case the sale was completed before either the Bihar Money-lenders (Regulation of Transactions) Act, 1939, or the Bihar Moneylenders Act, 1938, was passed and there is nothing in either of those Acts to express the intention of the Legislature to invalidate a completed sale which was otherwise good.

We are referred for the appellant to the Privy Council decision in AIR 1936 49 (Privy Council) but in my opinion what was there decided does not apply to the case before us. Their Lordships were considering the effect of the words in Section 26(N), Bihar Tenancy Act. The words are "shall be deemed to have given," and their Lordships held that the substantive rights of landlords and their accrued causes of action were being abrogated by this provision in the enactment in the circumstances. It was said "respect for pending suits over old transfers cannot be assumed."

In the Bihar Money-lenders (Regulation of Transactions) Act, Section 13 is no doubt made applicable to applications for execution whether made before or after the commencement of the Act and this Section with Section 14 gives directions as to the preliminaries which are to precede a sale and the manner in which the sale is to be held. But in order that these Sections may be applicable, it seems to be necessary that the execution should be still pending and it has been held that on the sale of immovable property being confirmed, execution is complete. The order confirming the sale was passed on 9th February 1938, before either of the Acts which have been referred to were enacted. I am, therefore, of opinion that those provisions do not operate to invalidate the sale. In the result, I would dismiss the appeal with costs. There will be one set of hearing fee to be divided between the decree-holder and the auction-purchaser.

Chatterji, J.

I agree,