C H BENSON Vs. RAM ARJUN DAS

JUDGEMENT

(1.) This appeal is directed against an order, dated 18-9-1948, passed by the learned Subordinate Judge of Motihari in a proceeding under Section 13 (Section 16?), Bihar Money-Lenders Act, determining the value of a certain property sought to be proceeded against in execution of a decree obtained by the decree-holder respondent against the applt. The decree now amounts to a little over thirty-five thousand rupees. We have been informed at the Bar that the applt. has instituted a suit for setting aside the decree on the ground of fraud, & that, in that suit, he has obtained an order of injunction restraining the decree-holder from proceeding with the execution of the decree; but we have not been shown any orders to that effect. Be that as it may, these proceedings have been taken during the course of the execution of the decree taken out by the decree-holder in the Ct. below. The property attached was a block of land measuring about 144 bighas in Motihari Dist. where 1 bigha is said to be equal to one and a half acres. The property was valued, in the first instance, at Rs. 500 per bigha, on 19-5-1948, on the basis of an affidavit filed on behalf of the decree-holder to the effect that the property was not worth more than Rs. 200 per bigha. The order does not indicate on what basis that figure was arrived at. Apparently, it was based on a rule of thumb. The judgment-debtor got that order vacated on the ground that he had no notice of the appln. for determining the valuation of the property. The order under appeal itself appears to have been based upon certain sale deeds as also mtge. bonds and affidavits and counter affidavits, & the Ct. below has come to the conclusion that the valuation fixed on the previous occasion had not been shown by the judgment-debtor to be inadequate. The Ct. below appears to have misapprehended the scope of the proceedings. It was not for the judgment-debtor to show that the valuation fixed ex parte on the previous occasion was inadequate : it was the business of the Ct. after receiving on both sides, to come to a conclusion as regards the fair market value of the property sought to be proceeded against.

(2.) In this Ct., Mr. Prem Lall, appearing on behalf of the decree-holder, for the first time raised the question that the decree was not based on a transaction of money-lending which could attract the provisions of Section 13 (Section 16?) of the Bihar Money-Lenders Act. He contended further that the decree was based on a suit for damages for breach of a contract. If that is so, the Bihar Money-Lenders Act would not be attracted to a decree passed on such a claim. But Mr. Prem Lall's difficulty is that this point was not raised in the Ct. below, & the judgment-debtor had no notice of this contention. As we propose to send this case back for a fresh decision, it will be open to the decree-holder to agitate this matter in the Ct. below, & the judgment-debtor cannot have any grievance on the score that he had no notice of that contention.

(3.) Coming to the question of valuation of the property, it appears that the decree-holder sought to proceed against 71 bighas and odd out of the block of 144 bighas on the basis of the valuation arrived at by the Ct. during the execution proceedings, namely, Rs. 500 per bigha. That area perhaps would have been enough to liquidate the entire decree. But I find that, on material questions, the parties relied upon only affidavits and counter affidavits. The Ct. below was trying the case on the original side, & the persons who swore the affidavit & other competent witnesses could very well have been put in the witness-box, & subjected to cross-examination by the opposite party. That has not been done in this case. It is, therefore, directed that the case be re-heard by the Ct. below on evidence regularly recorded. The Ct. must make an attempt to come to a judicial finding as to the real value of the property. The proceedings under Section 13 (Section 16?), Bihar Money-Lenders Act are not a mere formal proceeding but a judicial proceeding meant to arrive at a fair valuation of the property, so that neither the judgment, debtor nor the decree-holder might be prejudiced.