KEDAR NATH Vs. BANWARI RAI

JUDGEMENT

(1.) This is an appeal from the orders of the learned Subordinate Judge of Chapra confirming those of the Munsif of the same place, fixing the value of certain properties which are to be sold in execution of a mortgage decree. (After adverting to the preliminary objection raised by the counsel for respondent that no second appeal lay in this case, his Lordship took up that preliminary question, for decision in the first-instance.) It is the settled law, at least so far as this Court is concerned, that the order of the executing Court valuing the property of the judgment-debtor to be sold in execution of the decree is a judicial order, but has not the effect of a decree, and is therefore not appealable: see the cases in Deokinandan Singh V/s. Dhakeswar Prasad Narain Singh A.I.R. 1916 Pat. 90 and Saurendra Nath Mitra V/s. Mritunjay Banerji A.I.R. 1920 Pat. 249. Such an order is not appealable even as an order, inasmuch as it is not contained in the list of appealable orders in Rule 1 of Order 43, Civil P.C., read with Section 104 of the Code. Hence, before the enactment of the Bihar Money-lenders (Regulation of Transactions). Art. 7 of 1939, an order fixing the valuation was not appealable at all either as an order or as a decree.

(2.) As a matter of fact, this Court considered the matter of valuation of such a secondary importance as not to require any adjudication by the Court at all, and amended Rule 66 of Order 21, Civil P.C., by inserting the proviso in the following terms: "Provided 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 a statement that the Court does not vouch for the accuracy of either, shall be inserted in the sale proclamation." But on the enactment of the Bihar Money- lenders (Regulation of Transactions) Art. 7 of 1939 the matter assumed greater importance inasmuch as by Section 13 of the Act the executing Court was required to come to a judicial decision after hearing the parties as to the value of the property to be sold in execution of the decree. And by Section 14 it was further provided that the property or the portion of the property to be sold in satisfaction of the decree "shall not be sold at a price lower than the price specified in the said proclamation."

(3.) Realising that the matter had assumed a greater importance, the Legislature provided for an appeal from the "order" fixing the value of the property. Sub- section (2) of Section 13, Bihar Money-lenders (Regulation of Transactions) Article 7 of 1939, runs as follows: "Any person aggrieved by an order passed under Sub- section (1) may appeal to the Court to which appeals from the Court executing the decree ordinarily lie." It is manifest that the Legislature provided for only one appeal from the orders of the executing Court fixing the valuation of the property and that such an order is not intended to have the force of a "decree." If the Legislature intended that such an order should have the force of a decree admitting of a first and a second appeal, it would have worded Sub-section (2) of Section 13 quite differently. It has not been contencied on behalf of the appellant in this case that the words of Sub-section (2) of Section 13 aforesaid lend themselves to the construction either that an order fixing the value of the property to be sold has the effect of a "decree" or that they specifically provide for a second appeal also. But counsel for the appellant has contended that such an order has the effect of an order passed by the executing Court conclusively determining the rights of the parties in the matter of valuation, and that, therefore, Section 47 read with Section 2(2), Civil P.C., becomes applicable to such an order. It is true that an order fixing the value of the property, or a portion of the property, to be sold in execution of the decree may come within the purview of Section 47, Civil P.C., but every order passed by the executing Court under Section 47 of the Code has not the effect of a "decree."