MAHABIR DASS Vs. MOTIBHAI NARSIBHAI PATEL

JUDGEMENT

(1.) Both the appeals arise out of Money Execution Case No. 2 of 1966 pending in the Court of the First Additional Subordinate Judge, Bhagalpur. They were heard together, and this judgment will govern both of them.

(2.) The decree-holder-respondent filed a money suit for the realisation of arrears of price of tobacco and bidi leaves sold to the judgment-debtor appellants. The said Money suit No. 156 of 1954/16 of 1958 was decreed in terms of the compromise on the 30th September 1958. The suit was decreed for a sum of Rs. 52,600/- with future interest at the rate of six per cent per annum till realisation. The decretal amount was to be paid by instalments, and in default of payment of any instalment the entire remaining decretal amount was made payable. The properties detailed in the compromise petition, which were attached before judgment, were made subject to first charge for the decretal amount, interest and cost of execution. The attachment, which had been effected under Order 21, Rule 54 of the Code of Civil Procedure, was made absolute, and the declaration of first charge was made by way of security for the realisation of the decree money. The judgment-debtor-appellants executed a security bond creating first charge for the payment of the decretal amount as provided in the compromise decree. One Srimati Sona Bati, who had filed a miscellaneous case regarding a portion of the property, also joined the deed as a confirming party.

(3.) The judgment-debtors failed to pay the instalments, and, consequently, the decree-holder levied execution on the 17th January, 1966. The notices, which were issued, returned unserved twice. Then, the notices were sent through registered post, which also met the same fate. Thereupon, recourse to substituted service was taken. After the publication of the notice in the Bihar Gazette, the judgment-debtors appeared and filed an application under Sections 47 and 151 of the Code of Civil Procedure on the 15th September, 1966, which was numbered as Miscellaneous Case No. 120 of 1966. The execution petition was challenged on the ground that the execution case was not maintainable, and a prayer for staying further proceedings of the execution case was made. The Court refused to stay the pro- ceeding. Against this order, the judgment-debtors came in revision to this Court in Civil Revision No. 630 of 1966 which was summarily dismissed by Untwalia, J., with some observations. Thereafter, order for issue of sale proclamation was made by the executing court. The decree-holder filed a petition on the 6th September, 1966, praying that no notice of valuation was required to be served on the judgment-debtors. This petition was heard on the same day on which Miscellaneous Case No. 120 of 1966 was filed. The Court, after hearing the parties, order that no notice of valuation be issued in the execution case, and that the valuation given by the judgment-debtors be also noted in the sale proclamation. In the meantime, the judgment-debtors filed an application for fixing valuation under Section 13 of the Bihar Money Lenders Act on the 9th December, 1966. This was registered as Miscellaneous Case No. 148 of 1966. Later, on the 7th January, 1967, the petition was amended by inserting Section 47 of the Code of Civil Procedure. On the 10th January, 1967, the judgment-debtors filed a petition praying not to issue the sale proclamation until the disposal of Miscellaneous Case No. 148 of 1966. This application was rejected, and Miscellaneous Appeal No. 19 of 1967 is directed against the said order. The application under Section 47 of the Code of Civil Procedure and Sections 13 and 14 of the Bihar Money-Lenders Act (Miscellaneous case No. 148 of 1966) was heard and dismissed by the learned Subordinate Judge on the 28th January, 1967. Miscellaneous Appeal No. 74 of 1967 is directed against the said order.