BHUPATI CHARAN BAG Vs. MANMATHA NATH MAJUMDAR

JUDGEMENT

(1.) THIS appeal is from the order dated 17. 12. 63 passed by Subordinate Judge, 24-Parganas in Title Execution Case No. 34/1960 dismissing the Miscellaneous Case No. 66/1963 arising out of an application filed by the judgment-debtors appellants under section 35 of the Bengal Money Lenders Act 10/1940 (hereafter referred to as the Act ).

(2.) THE facts giving rise to the present appeal are as follows : After the amount was settled at rs. 19,515/-on compromise on an application u/s. 38 of the Act, a preliminary mortgage decree was passed for Rs. 21,223-72 which was followed by a mortgage final decree. On 2. 3. 62 a sale proclamation was issued in Title Execution Case No. 34/1960 fixing 9. 5. 62 for sale. But before the sale could be held after it was adjourned, the judgment-debtors Bhupati Bag and Madhab Bag filed an application u/s. 47 of the Civil Procedure Code on 28. 5. 62 registered as Misc. Case No. 27/1962 objecting to the valuation of the sale proclamation. By an order dated 7. 9. 63 passed on consent the Court directed issue of a fresh sale proclamation including both the valuations given by the decree-holders as well as the judgment-debtors viz. Rs. 20,000/- and 1 lacs respectively and sale date was fixed on 17. 12. 63 The sale proclamation was served on the 9th of October, 1963, and 10th of October, 1963. In the meantime, the same judgment-debtors filed a petition under section 47 alleging, inter alia, chat the description of the properties were not sufficient. This petition was registered as Misc. Case No. 59/1963 and it was heard and disallowed on the 14th of December, 1963. Then on the 16th of December, the same set of judgment-debtors filed a petition under section 35 of the Bengal Money Lenders Act. The petitioners contended that under section 35 of the Bengal Money Lenders Act 1940 the decree-holders are entitled to put to sale so much of the mortgaged property as is sufficient to liquidate the decretal dues and in the schedule of the application some eight items of property were mentioned which are a portion of the mortgaged property and its value is said to be Rs. 21,500/ -. The petitioners contended that the valuation of the property mentioned in the schedule should be determined by the Court and the same should be directed to be advertised for sale and not the entire mortgaged property in terms of Section 35 of the Bengal Money Lenders Act. These facts are not disputed. The learned Trial Court, however, by an order dated 17. 12. 63 dismissed the Misc. Case and rejected the application as not maintainable both on the ground of waiver and also on the ground of constructive resjudicata. Being dissatisfied the petitioners preferred this appeal which is contested on behalf of the decree-holders.

(3.) AT the outset a controversy arose whether the order is appealable or whether the application for revision is necessary. It is now well-settled that an application under section 35 of the bengal Money Lenders Act relates to the execution of the decree relating to the sale of the property between the decree-holder and the judgment-debtors or their representatives and as such it amounts to an objection under section 47 of the Civil Procedure Code and accordingly it is appealable. If any authority is needed, we may refer to the decision of this Court (1) Gaya Prosad v. Seth Dhanrupwala Bhandari 58 C. W. N. 503 in which it was held that an objection under section 35 of the Bengal Money Lenders Act 1940 involves question relating to the execution of the decree affecting the rights and liabilities of the parties requiring judicial determination of the same under section 47 of the Civil Procedure Code. We, therefore, hold that the appeal is competent and as such reject the application for revision without costs which is unnecessary. This is also implied in the decision entertaining the appeal from an order rejecting the application under section 35 of the Bengal Money Lenders Act in (2) Asaram Thikadar v. Bijoy Singh, 1944 I. L. R. 1 Calcutta 167.