KALIDAS RAKSHIT Vs. SMSAMRANGINI ROY CHOWDHURANI

JUDGEMENT

(1.) This is an appeal by the defendant mortgagor judgment debtor against an order made by Edgley J. on 9 December 1942. The relevant facts are as follows : On 7 April 1937 the defendant created a mortgage upon two immovable properties of which one was No. 4 Burtolla Street, Calcutta, (hereinafter called the premises). It is common ground that the provisions of the Bengal Money Lenders Act, 1940 (hereinafter called the Act) apply to the transaction. The mortgagee filed this mortgage suit in January 1939, a preliminary decree was obtained in the following March by which inter alia it was ordered that if the money realised by the sale of the mortgaged property was not sufficient for payment of the amount due, the plaintiff should be at liberty to apply for a personal decree against the defendant for the balance. The final decree was passed on 15 April 1940 for Rs. 34,202 with the usual terms regarding the sale of the hypotheca. The items of property, other than the premises, were sold and the proceeds, less expenses of sale, were paid to the mortgagee in part satisfaction of the amount due under the decree. The question of the sale of the premises then arose. In order to ascertain the reserved or specified price of the premises the Registrar obtained a report from a firm of surveyors, Messrs. Talbot & Co., who valued them at Rs. 27,000 and the Registrar fixed the reserved price or specified price at this amount. The premises were put up for sale on 14th July 1940, 30 August 1941 and 3 January 1942. The highest bids obtained were, respectively Rs. 20,000, Rs. 21,000 and Rs. 10,000. Since these bids were less than Rs. 27,000 the premises were not sold and the Registrar adjourned (or postponed) the sale on each occasion.

(2.) On 12 February 1942, upon an application to Sen J. to reduce the value of the premises, the learned Judge ordered a fresh valuation to be obtained from another surveyor. Mr. C. K. Sarkar reported that the premises were worth Rs. 26,500 and the Registrar fixed the reserved or specified price at this sum. The premises were put up for sale on 22 August 1942 when the highest bid was Rs. 22,000 and as this was less than Rs. 26,500 the Registrar, for the fourth time, adjourned the sale. On 9 December 1942 upon an application to reduce the value of the premises to Rs. 20,000 Edgley J. in effect, ordered that the Registrar be at liberty to hold two further sales subject to the value of Rs. 26,500 provided that the defendant deposited within ten days with the plaintiff's attorney the sum of Rs. 700 as the cost of such sales; if the highest bid at these two sales did not reach the above sum, or the defendant defaulted in payment of the deposit of Rs. 700, the value of the premises was to be reduced to Rs. 20,000 and the Registrar was to be at liberty to sell subject to this reduced price.

(3.) The appeal is against this order, the grounds being, (1) that, by reason of the provisions of Section 35, Bengal Money-Lenders Act, when the value of the premises or their specified price is once fixed the amount thereof cannot subsequently be reduced and (2) that the premises are worth more than Rs. 20,000, the value fixed by the learned Judge. On behalf of the plaintiff-respondent it was contended, (1) that no appeal lies against the order of Edgley J. and (2) that the defendant requested the learned Judge to make the order and, consequently, no appeal by him against it can be entertained. The provisions of Section 35 of the Act are as follows: Notwithstanding anything contained in any other law for the time being in force, the proclamation of the intended sale of property in execution of a decree passed in respect of a loan shall specify only so much of the property of the judgment- debtor as the Court considers to be saleable at a price sufficient to satisfy the decree, and the property so specified shall not be sold at a price which is less than the price specified in such proclamation: Provided that, if the highest bid for the property so specified is less than the price so specified, the Court may sell such property for such amount, if the decree- holder consents in writing to forgo so much of the amount decreed as is equal to the difference between the highest amount bid and the price so specified.