BANSHIDHAR MOHANTY Vs. GOURGOPAL DAS

JUDGEMENT

(1.) The decree-holder in Execution Case No.97 of 1968 of the court of the First Additional Subordinate Judge, Cuttack, who figured as the respondent No.1 in Miscellaneous Appeal No.214 of 1974 of this Court decided by the learned single Judge Honourable R.N. Misra, J. (as his Lordship then was)., is an appeal against the reversing judgement of the learned Judge allowing the appeal preferred by the respondent No.1 herein against the order dated Aug. 26, 1974, passed by the First Additional Sub-ordinate Judge, Cuttack, in the aforesaid Execution Case directing sale of lots A and C properties for satisfaction of the decree under execution.

(2.) The appellant obtained a mortgage decree for Rs. 41,211.31 paise which, by the time of execution, amounted to over Rs. 49,000. The security for the mortgage was a house located in the city of Cuttack. Steps were taken under S.14 of the Orissa Money Lenders Act (hereinafter referred to as the "Act") to estimate the value of the property which was done by an Engineer-Commissioner who divided the house into three parts and valued as under : Part A - Rs. 32,900/- Part B - Rs. 79,000/- Part C - Rs. 15,500/-

(3.) On March 15, 1973, the valuation was accepted by the executing court and a direction was given for the sale of Part B property which, according to the court, would be sufficient to satisfy the decree. This order could be but had not been appealed against under S.14(2) of the Act. Sale was held on 5-11-1973 and the appellant was the highest bidder of Rs. 18,200. On January 25, 1974, the appellant applied for revaluation of the security on the ground that the valuation made was too high and this was objected to by the respondent No.1. The prayer for revaluation was rejected by the executing court on April 12, 1974. On August 26, 1974, the executing court, overruling the objection raised by the respondent No.1 to the memorandum filed by the appellant on April 18, 1974, to proceed against Parts A and C properties, allowed the prayer by holding that there was no legal bar for the appellant to proceed against the other two Parts of the properties. This order was challenged in Miscellaneous Appeal No.214 of 1974. The appellant raised a preliminary objection in the Appeal to the effect that no appeal lay and for the reasons recorded in paragraph 2 of the impugned judgement, this objection was overruled and it was held that an appeal did lie against the impugned order of the executing court under sub-sec.(2) of S.15 of the Act. In this appeal, neither in the memorandum of appeal nor at the stage of hearing, such a contention raised before the learned single Judge has been raised before us.