MEHI SAHU Vs. HARI LAL SAHU

JUDGEMENT

(1.) This is an appeal from concurrent orders of the Courts below dismissing an objection of the judgment-debtor in certain execution proceedings. The judgment- debtor objected in the execution proceedings that no valuation had taken place in accordance with the provisions of Secs.13 and 14, Bihar Money-lenders Act, and he claimed that such a valuation should take place. He further objected that execution of the decree in the manner proposed should not proceed. The learned Munsif disallowed the objections and on appeal that decision was affirmed by the learned District Judge. In my view, the orders of the Courts below cannot be sustained, because it is clear that no valuation of the property concerned had been made in accordance with the provisions of Secs.13 and 14, Bihar Money- lenders Act, It appears that a notice was sent to the judgment-debtor and that 11 March had been fixed for the hearing of certain matters. Both the Courts have construed that notice as a notice to the judgment-debtor that on 11 March 1940, the Court would proceed to value the property in accordance with the provisions of the Bihar Money-lenders Act. It had been argued before the Munsif that that notice was not a notice of any proposed proceedings under the Bihar Moneylenders Act, but was a notice of proceedings under the provisions of the Civil P.C. The learned Munsif deals with the argument in this way: The other objection was that question of valuation should be gone into under the provision of the Money-lenders Act, and not under Civil P.C. Whatever the label the contents of notice show it was under Money- lenders Act and so the matter does not arise now that the valuation was fixed once by this Court. If aggrieved the remedy lay in appeal.

(2.) Had the property been properly valued in the absence of the judgment-debtor, the latter could not claim to have the property revalued if notice of the original proceedings had been served upon him. On the other hand, if the property was valued without notice, then that valuation was not in accordance with law as Section 18, Bihar Money-lenders Act, requires the Court to hear the parties. In other words, notice must be given to both the parties. The Munsif is not right when he says that the contents of the notice served upon the appellant was that it was under the Bihar Money-lenders Act. On the contrary, it was the ordinary form of notice under the provisions of the Civil Procedure Code informing the judgment- debtor that the Court would settle the conditions of sale. There was nothing to suggest that the Court would proceed to value the property under Section 13, Bihar Money-lenders Act. A very astute judgment-debtor might have read that into the notice: but I do not think it can be said to be a notice that valuation proceedings would take place. A notice should expressly state that the Court would value, and this notice does not do so.

(3.) In my view, the valuation which took place in this case was a valuation without a notice served on the judgment-debtor, and that being so, the judgment- debtor was entitled to ask the Court to value the property afresh, and the learned Munsif should have acceded to that application. On this ground the orders of the Courts below cannot be sustained and must be set aside. That being so, it is unnecessary to express any opinion as to the other objection taken by the judgment-debtor. For the reasons given, I would allow this appeal, set aside the orders of the Courts below and send the case back I to the Court of the learned Munsif through the learned District Judge to enable the learned Munsif to value the property after due notice given to the parties. The appellant is entitled to his costs in this Court and in the lower Appellate Court. The costs of the original proceedings before the Munsif and the further proceedings will be dealt with by the learned Munsif. Dhavle, J. I agree.