UMAKANT MISHRA Vs. DINANATH PRASAD SHAH

JUDGEMENT

(1.) This appeal is filed against the judgment and order dated 20-6-1987 passed by the High Court of Patna rejecting Civil Revision No. 1078 of 1984 holding that the executing court has no right to review the valuation fixed by the trial Judge. The said revision application was filed by the appellant judgment-debtor against the order dated 31-3-1984 passed by the IVth Additional Subordinate Judge, East Champaran, Motihari in miscellaneous Appeal No. 17/5/7 of 1982, whereby the Additional District judge set aside the order dated 19-2-1982, passed by the Munsif in Execution ca. seno. 51of 1978.

(2.) To appreciate the contentions raised by the parties, it would be necessary to set out a few facts. The appellant is the judgment-debtor and the parties are governed by the provisions of the Bihar Money Lenders Act, 1974 (hereinafter referred to as "the Act"). Section 18 of the said Act specifically provides that when an application is made for the execution of a decree passed in respect of loan or interest on loan advanced by the sale of the judgment-debtor's property, the court executing the decree shall, notwithstanding anything to the contrary contained in any other law, hear the parties to the decree and estimate the value of such property and that portion of such property which would be sufficient to satisfy the decree. Section 19 of the Act further provides that the proclamation of the intended sale of the property in execution of the decree is required to include mainly so much of the property of the judgment-debtor which can satisfy the decree and is also required to state the value of the portion of the property to be sold as determined under Section 18 of the Act. Further mandate of the section is "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 said proclamation".

(3.) In the present case, it is an admitted fact that judgment-debtor filed an application on 30-9-1980, before the executing court stating that valuation of the property fixed by the court was not proper and was fixed without giving any opportunity of hearing to the judgment-debtor. At the time of hearing of the said application, the judgment-creditor agreed that opportunity of hearing was not given to the applicant and he has not raised any objection for the contentions raised by the judgment-debtor that the process was not served before fixing the valuation of the land. Therefore, the executing court raised the issue "whether the valuation of the lands given in the schedule of the execution proceeding fixed by the Court after ex part hearing is correct and if not, what should be the proper valuation of the lands given in the execution talika". After hearing the parties, by order dated 8-5-1981 the Court set aside the ex part order dated 28-8-1980 fixing the valuation of the property as required under Section 18. The Court set aside the fixation of the valuation @ Rs. 316 per katha and re-fixed the same @ Rs. 1000 per katha.