KAMLESHWARI PRASAD Vs. MAHADEO SAHAI

JUDGEMENT

(1.) This is an application to revise an appellate order affirming the refusal by the Munsif to set aside a sale of immovable property under Order 21, Rule 90, Civil P.C. The objection takon was that the decree under execution was a decree in respect of a loan or interest on a loan. It was in fact a mortgage decree. That being so, Section 13, Bihar Money. e lenders {Regulation of Transactions) Act, was applicable and it was the duty of the Court to hear the parties and form an estimate of the value of the property and of the portion of the property the sale of which should be sufficient to satisfy the decree and that the Court should have issued a fresh sale proclamation under Section 14 of the same Act in respect of only so much of the property as would be likely to be sufficient to satisfy the decree. The applicant before us had presented in the Munsifs Court a petition dated 28 September 1940 for proceeding under the above Secs.13 and 14 for valuing the property f and for issue of a fresh sale proclamation. The application was refused on the ground that at an earlier stage in the pendency of the same execution case the applicant had appeared after the issue and publication of sale proclamation and, had asked for an instalment decree to be passed. In that petition he had waived all rights to the issue of a fresh sale proclamation and had waived all objections as to the valuation of the property. Substantially the finding of the Court was that after such waiver it was not open to the judgment-debtor to maintain the present application. Accordingly the Munsif rejected g the application and held the sale and the Subordinate Judge before whom an appeal from this decision was heard maintained the decision.

(2.) Now it is argued in revision that the Munsif in putting up the property to sale acted without jurisdiction or in excess of his jurisdiction, because, it is said, once an application was made under Section 13, Money-lenders (Regulation of Transactions) Act, it became mandatory to fix a valuation under that section and to proclaim for sale under Section 14 only so much of the property as was necessary. In support of this contention reliance is placed on the decision of this Court in Gunjari Mahatani V/s. Nil Kamal Panda A.I.R.1914 Pat.418. The Subordinate Judge had considered this case and thought that it could be distinguished on the facts. He preferred to follow an earlier ruling of this Court which proceeded upon the general proposition that the judgment-debtor cannot resile from his undertaking and is estopped from raising the question of valuation when the objection is one of the objections which he waived at an earlier stage. That decision was given before the passing of the money-lenders legislation by the Provincial Legislature of this province. We shall have therefore to consider cases of this Court decided after the passing of the Money-lenders Act and the amending Act. First I should refer to the state of the statute law regarding sale proclamations. The general rule immediately before the passing of the Money. lenders Act which is the general rule still is embodied in Order 21, Rule 66 of the Code. That rule in the form in which it stands in this province runs as follows: (1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation...shall state...the time and place of sale, and shall specify as fairly and accurately as possible (the particulars stated in Clauses (a)(b)(c)(d) and (e) next following, with the proviso): That no estimate of the value of the property other than those if any made by the decree-holder and judgment-debtor respectively together with the statement that the Court does not vouch for the accuracy of either shall be inserted in the sale proclamation. Sub-rules (3) and (4) provide for verification of the application for an order for sale and for the ascertainment by the Court of the matters to be specified in the proclamation. The Court may examine any person and may require him to produce any document relating to the property. That is still the general rule for the execution of decrees not of a kind referred to in the Money-lenders Act and the Money-lenders (Regulation of Transactions) Act, but in dealing with "the execution of a decree passed in respect of a loan or interest on a loan by the sale of the judgment debtor's property," Section 18, Money-lenders Act, requires that 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 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.

(3.) The proviso allows the whole property to d be sold, if necessary and Sub- section (2) permits an appeal by any person aggrieved by an order passed under Sub-section (1). Section 14 applies to the same class of cases as Section 13 and enacts that notwithstanding anything to the contrary contained in any other law or in anything having the force of law the proclamation of the intended sale of the property in execution of a decree in respect of a loan or the interest on a loan shall include only so much of the property of the judgment-debtor, the proceeds of the sale of which the Court considers will be sufficient "to satisfy the decree and shall state the value of the property or portion of the property" as determined under Section 13. And other provisions follow to prevent the property being sold at a price lower than the price specified in the sale proclamation subject to 8 certain exceptions.