GAYAPROSAD Vs. SETH DHANRUPMAL BHANDARI

JUDGEMENT

(1.) The appellant Gayaprosad was one amongst a number of judgment-debtors under a mortgage decree. The mortgage was of the year 1935. The property mortgaged was a two-storied brick-built house at Kharagpur together with land appertaining thereto comprising an area of about 11 decimals and the amount advanced upon the mortgage was Rs. 7,500/-. In the year 1941, the mortgagee Seth Dhanrupmal Bhandari instituted Mortgage Suit No. 22 of 1941 in the First Court of the Subordinate Judge at Midnapore for the recovery of his dues under the said mortgage. The suit was decreed preliminarily on 31-1-1952, and the appeal therefrom was disposed of by this Court on 7-5-1946. Thereafter a final decree was made in the suit on 18-1-1950, and the same was put into execution on 15-3-1950, in Mortgage Execution Case No. 13 of 1950 of the First Court of the Subordinate Judge at Midnapore. After service of the usual notices under Order 21, Rule 66, Civil P. C., and other usual steps the mortgaged property was advertised for sale. The sale proclamation was issued on 3-7-1951 and the sale was fixed for 16-8-4951. Two days before the date fixed for the sale, that is, on 14-8-1951, the appellant Gayaprosad who was judgment-debtor No. 1 applied under Section 47, Civil P. C., raising objection to the proposed sale. This application was dismissed by the learned Subordinate Judge on 4-3-1952, and the sale was eventually held on 15-5-1952, when, it appears, the mortgaged property was sold and purchased by a third party for Rs. 23000/-. On 2-6-1952, the present appeal was filed by the appellant (judgment-debtor No. 1) against learned Subordinate Judge's order, dated 4-3-1952, rejecting his objections under Section 47, Civil P. C. On 11-6-1952, this appeal was admitted under Order 41, Rule 11, Civil P. C., and since then further proceedings in the execution case (Mortgage Execution Case No. 13 of 1950 of the court of the First Subordinate judge of Midnapore) have remained stayed under orders of this Court.

(2.) On the appellant's application under Section 47, Civil P. C., the main objection that was raised was to the effect that, as the sale proclamation had not been settled in compliance with the provisions of Section 35, Bengal Money-Lenders Act, the proceedings for sale were contrary to law and should be vacated and the execution case should commence again from the stage of settlement of the sale proclamation. The learned Subordinate Judge negatived this contention upon the view that the appellant (Judgment-debtor No. 1) not having objected in time to the settlement of the sale proclamation, or, to be more particular, to the valuation or valuations put in the sale proclamation, no such objection was open to him and it could not be entertained by the court. This decision is challenged in this appeal.

(3.) A preliminary objection was sought to be raised to the maintainability of this appeal on the ground that, as Section 35, Bengal Money-Lenders Act, was really part of the procedure for the settlement of the sale proclamation, the proceedings under that section were in substance proceedings under Order 21, Rule 66, Civil P. C., (Vide -- 'Mamindra Chandra v. Jagadish Chandra', 50 Cal WN 266 (A) and, as such, were not open to appeal. This objection was apparently based upon the observations, made by Sulaiman, J., in the case of --'Shyamakant Lal v. Rambhajan Singh', AIR 1939 FC 74 (B), Federal Court, at pages 80 and 81 of the Report, and upon the line of cases, noticed by that learned Judge there, the principle of which cases was followed in the recent decision of the Madras High Court reported in -- 'Rangachariar v. Trinity Bank, Ltd., Trichinapoly', AIR 1948 Mad 411 (C) and, still more recently, by the Allahabad High Court in -- 'Premwati v. Satyawati Jain'. Side by side, however, with the line of cases, referred to above, there is another series of decisions to which belong cases of the type, reported in -- 'Devendra Nath v. Kailash Chandra', AIR 1925 Cal 318 (E), and the Full Bench decision of the Lahore High Court in the case, reported in -- 'Nasib Singh v. Amin Chandra', AIR 1942 Lah 152 (F), and, even in the very case --'AIR 1939 FC 74 (B)', where Sulaiman, J. made his above observations, the other learned Judges expressed themselves differently (Vide the majority judgment at pages 77 and 78 of the Report).