BADRI MAHTO Vs. LOCHAN SAH

JUDGEMENT

(1.) This is a second appeal from concurrent orders of the Courts below dismissing a judgment-debtor's application under Section 47, Civil P.C., and Section 15, Bihar Money-lenders Act. In this application under Section 47, Civil P.C., and Section 15, Bihar Money lenders Act, the judgment-debtor took all possible objections that could be raised. He alleged that the decree under execution had been fraudulently obtained by wrongly describing the judgment-debtor as a minor whereas he was a major and also by the suppression of summonses. He further alleged in the execution case that all the processes had been suppressed and that the proclamation of sale had also been suppressed. It was further alleged that the judgment-debtor had been described as being under the guardianship of his mother, whereas in fact his proper guardian was a pleader guardian appointed earlier. It was further alleged that the appellant was an agriculturist, and as he had less than an acre of land in his possession, such was not liable to be sold under Section 15, Bihar Money-lenders Act. It was further alleged that his house being that of an agriculturist could not be sold under Section 60, Civil P.C., and Section 177A, Bihar Tenancy Act. Both the Courts below dealt with the various objections and dismissed them.

(2.) In this second appeal Mr. Nawal Kishore Prasad II has taken an entirely new point, though every conceivable point had been taken in the Courts below to hold up this execution. It is now contended for the first time that no valuation of the property was ever made as required by Secs.13 and 14, Bihar Money-lenders Act. It is said that these sections were in force before the sale took place, and, therefore, as no valuation under their provisions had been made the Court had no jurisdiction whatsoever to sell the property.

(3.) It is clear from the application made to the learned Munslf that no such point was made; but there is a reference to it in the grounds of appeal to the learned District Judge. However, it is clear from the judgment of the learned District Judge that the point was never taken before him and it is not dealt with. The position therefore is that neither of the Courts below was asked to deal with this matter. That being so, this Court cannot consider this new point. It has been laid down time and again that this Court in second appeal cannot entertain an entirely new point if for its decision fresh facts have to be found. In the present case before we can decide the question, we should have to call for a finding as to what proceedings did take place in the Court below before the sale actually took place. Some value must have been given in the sale proclamation, and even that is not before us. It may be that the property was valued under the provisions of Order 21, Rule 66, Civil P.C., but again that information is not before us. For aught we know this property may well have been valued under Secs.13 and 14, Bihar Money-lenders Act. Before we could decide this question the facts would have to be gone into afresh. That being so, I do not think that the appellant should be allowed to raise this question in second appeal for the first time.