BANKA DAS Vs. SRINIVAS PADHI

JUDGEMENT

(1.) This is an appeal by the decree-holder against an appellate order passed under Section 14, Orissa Money-lenders Act (Act 3 of 1939). The execution case was started in 1939. In that execution case after notice to the judgment-debtor the terms of sale proclamation were settled. Subsequently the Orissa Money- lenders Act (3 of 1939) having been passed, the judgment-debtor made an application under Secs.18 and 14 of that Act, praying for instalments under Section 13 and for fixing the valuation of property under Section 14. These sections actually came into force on 1 December 1939. The Munsif in whose Court the execution case was pending passed the following order on 15th December 1989: Heard both parties Judgment-debtor did not object to settlement of terms although noticed and he had not admittedly made any payment towards-the decree after it was passed. The petition is accordingly dismissed with costs.

(2.) Against the said order the judgment-debtor filed an appeal to the District Judge who by his order dated 20 April 1940 held that the application under Section 18 should be disallowed and that the provisions of Section 14 being mandatory, the application under Section 14 should have been allowed. Accordingly he set aside the Munsif's decision so far as it related to the application under Section 14. Hence this appeal by the decree-holder.

(3.) The first question raised in this appeal is whether the order of the Munsif was appealable. If not, the appeal to the District Judge was obviously incompetent. There is no provision in the Money-lenders Act for an appeal against an order passed under Section 14 of that Act. It is, however contended that the order came under Section 47, Civil P.C., and was, therefore, appealable. But it must be borne in mind that every order under Section 47, Civil P.C., is not appealable. It is only those orders which amount to decrees that are appealable. The order which amounts to a decree must finally determine the rights of the parties. Fixing the valuation of a property does not finally determine the rights of the parties, because at the actual sale the property may fetch a different price from that already fixed by the Court. It has been held by this Court in several cases that an order fixing the valuation under Order 21, Rule 66, Civil P.C., is not appealable. In the present case therefore the Munsif's order was not appealable. That being so, the District Judge had no jurisdiction to entertain the appeal. On this ground alone his decision must be set aside. 5. It may be said that the second appeal to this Court is equally incompetent, but it has been held by this Court in Ram Ratan Prasad V/s. Banarasi Lal A.I.R. 1930 Pat. 280 that where the appellate Court has entertained an appeal which did not lie and passed a decision on the merits as if an appeal did lie, its order may be challenged by a second appeal to the High Court. Even assuming that the appeal to this Court is not competent, the decision of the District Judge was without jurisdiction, and consequently his order is liable to be set aside in revision, the memorandum of appeal being treated as a petition in revision. The decision of the learned District Judge is also wrong on the merits. Section 14, Moneylenders Act, runs as follows: When an application is made for the execution of a decree passed in respect of a loan or the interest on a loan by the sale of the judgment- debtor's property, the Court executing the decree shall notwithstanding anything to the contrary contained in any other law or in anything having the force of law, hear the parties to the decree and estimate as prescribed the value of such property and of that portion of such property the proceeds of the sale of which it considers will be sufficient to satisfy the decree: Provided that the Court may order the whole property of the judgment- debtor to be sold if it is satisfied that by reason of the nature of such property or any other special circumstances such property cannot reasonably or conveniently be sold in part. 6. The learned District Judge has held that the provisions of the section being mandatory, "the judgment-debtor has got a statutory right to get the price of his property fixed by the Court." Section 14 however provides that the Court shall estimate " as prescribed" the value of the property. Section 2(k) of the Act defines "prescribed" as meaning "prescribed by rules made under this Act." Section 26(2)(h) of the Act empowers the Provincial Government to make rules "for estimating the value of the property under Section 14." Sectioned (3) provides that the rules under the section shall not be made unless the Orissa Legislative Assembly by resolution approves the draft of the rules proposed to be made. Before Section 14 of the Act came into force, the Orissa Legislative Assembly was dissolved with the result that no rules could yet be framed by the Provincial Government under Section 26. The learned District Judge considers that "the Court was bound to await framing of the rules under Section 26, Money-lenders Act, for estimating the value of the property." In other words, the Court will be bound to stay execution of decree indefinitely. This is an absurd proposition. Section 14, Money, lenders Act, is undoubtedly mandatory, but when the rules for estimating the value of property under that section have not been prescribed, the provisions of the section cannot be applied. There is a definite mode prescribed by the section for estimating the value of property. If that mode fails the section becomes obviously inapplicable. 7. It may be said that in the absence of any rules made by the Provincial Government under Section 26 of the Act for estimating the value of the property under Section 14, the Court is to estimate the value according to rules of equity, justice and good conscience. But in the present case the Munsif after notice to the judgment-debtor had fixed the value of the properties. No materials have been placed before us to show that the Munsif a order was wrong. 8. In the result I would allow the appeal, set aside the decision of the learned District Judge and restore that of the learned Munsif. In the circumstances parties should bear their own costs in this Court as well as in the lower appellate-Court. Dhavle J. I agree.