SASHI BHUSAN MITRA Vs. RAMLAL MITRA

JUDGEMENT

(1.) This is an appeal against an order dated 5th May, 1975 passed by Shri M. M. Das, 4th Subordinate Judge, Alipore in Title Execution Case No. 1 of 1971 dismissing the application filed by the appellant under Order 34, Rule 5 of the Code of Civil Procedure.

(2.) The facts of the case may briefly be stated as follows:-- The property in suit is 75. Chakraberia North, Calcutta, comprising 10 cottahs of land with two storied (buildings. The property was sold at Rs. 41,600 to the decree-holder in execution of a mortgage decree. The appellant, who is the judgment-debtor filed an application under Order 21, Rule 90 of the Code for setting aside the sale. A Miscellaneous Case was started and the same was dismissed for default. Thereafter the appellant filed an application under Section 151 of the Code for setting aside the order of dismissal. That application was also dismissed. The appellant also filed an application under Section 36 of the Bengal Money Lenders Act and obtained order staying execution proceedings till the disposal of the case. The appellant preferred an appeal to this Court against order dated 16th June 1973 by which the application under Order 21. Rule 90 was dismissed. The appeal was numbered at F.M.A.T. 2827 of 1974. On 11th January 1975 the appellant made an application under Order 34, Rule 5 of the Code and deposited Rs. 19,625 for decretal amount, costs and interest and also 5% of the purchase money on Rs. 41,600. The application under the Bengal Money Lenders Act was not pressed and the same was dismissed for non-prosecution in view of the application under Order 34, Rule 5 of the Code. The application under Order 34, Rule 5 was dismissed by the Court below on the ground that the sale was deemed to be confirmed on 16th of June 1973 when the application under Order 21, Rule 90 was dismissed although the court omitted to pass an order confirming the sale, and also on the ground that there was no appeal from the order of dismissal dated 16th of June 1973 and there was no order of stay. Being aggrieved by the aforesaid order, the judgment-debtor has preferred the present appeal.

(3.) Mr. Saktinath Mukherjee, learned Advocate appearing on behalf of the respondent, raises a preliminary objection about the maintainability of the appeal. Mr. Mukherjee submits that the suit for the enforcement of the mortgage decree and recovery of dues was valued at Rs. 13,000, and that being so any proceeding in connection with that suit should be similarly valued and as such the learned District Judge was the proper court where the appeal ought to have been filed. As the valuation of the subject-matter falls within the jurisdiction of that court the appeal has been wrongly filed in this Court. Mr. Mukherjee submits that the valuation of the suit determines the forum of the appeal. In support of his contention he refers to several decisions. He first cites a case (Kiran Singh v. Chaman Paswan). In this case it was held that the decree passed without jurisdiction is a nullity. It was further held "The words 'unless the over-valuation or under valuation thereof has prejudicially affected the disposal of the suit or appeal on its merits' in Section 11 clearly show that the decrees passed in such cases are liable to be interfered with in an appellate court, not in all cases and as a matter of course, but only if prejudice such as is mentioned in the section results and that the prejudice contemplated by the section is something different from the fact of the appeal having been heard in a forum which would not have been competent to hear it on a correct valuation of the suit as ultimately determined". We do not see how the- principle laid down in this case applies to the fact of the present case.