BASANTA KUMAR CHOUDHURY Vs. SYLHET LOAN CO LTD

JUDGEMENT

(1.) This is an application made on behalf of a judgment-debtor Basant Kumar Chowdhury under the provisions of Section 115, Civil P. C., and to which the Sylhet Loan Co., Ltd., who were the judgment-creditors, are the opposite parties. The Company obtained a mortgage decree against the present applicant and his two brothers for a sum of Rs. 24,823-0-7, which decree is dated 9 June 1927. On 26 February 1931, the present opposite party sought to put the decree to execution in order to obtain payment of a sum of Rs. 28,307-14-7 which was the amount of the decree less a sum of Rs. 2,433-0-0 which had already linen recovered from the debtor. The decree-holders gave the value of the mortgaged properties as described in two schedules, as Rs. 21,307-0-0 and they also set forth that there was a claim in -expect of a mortgage decree obtained by another person as regards the lands mentioned in the first schedule, which decree was for the amount of six or seven thousand rupees. On 27 June 1931, the judgment-debtor, that is to say, the present applicant, filed an objection concerning the valuation of the properties under the provisions of Order 21, Rule 66, Civil P.C., and in that objection he stated that the valuation given by the decree-holders of every lot comprising the property was grossly inadequate and that the real valuation of those lots was m the neighbourhood of Rs. 6,75,100 The judgment-debtor, accordingly, asked that the Court should determine what was the real valuation of the property after taking evidence for that purpose. The applicant seems to have alleged that there was on the land some kind of oil-well which alone, as he said, would confer on the property a value of at least five lacs of rupees.

(2.) The matter came before the Subordinate Judge of Sylhet on 26 September 1931. As a result of the proceedings, then had before him, he made the following order: Heard decree-holder's pleader about the probable nature of the lands to be set forth in the proclamation of sale. The judgment-debtor objector has proposed a very high value. It is unnecessary to enter into evidence. Lot the values set forth by both parties be noted in the proclamation of sale. But the decree-holder will not be bound by the statement of value given by the judgment-debtor.

(3.) That order of 26 September 1931, is now called in question in the present proceedings before us and we are asked to say that that order ought to be set aside or varied on the ground that the Subordinate Judge acted with material irregularity of such a character as to bring the matter within the ambit of Section 115, Civil P. C, in that it was not right in the circumstances of this case that he should have directed that the valuation put forward by each of the parties should be stated in the proclamation of sale instead of some valuation arrived at after an inquiry made by himself. There have been a large number of applications of this character within a recent period and there are now extant a large number of authorities dealing with this point. I think it is necessary that we should remind ourselves of the precise terms of the rule under which an execution matter of this character falls to be dealt with. Rule 66, Order 21, Sub-rule (2), says: Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor, and shall state the time and place of sale, and specify as fairly and accurately as possible. five categories of matters, the last of which under the denomination (e) is referred to thus: Every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property.