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Shiam Lal Vs. Roshan Lal and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Judge
Reported inAIR1916All287; 35Ind.Cas.230
AppellantShiam Lal
RespondentRoshan Lal and ors.
Excerpt:
.....application for review of the decree has since failed, and it may be that the learned judge of the court bellow had reasons for supposing that it was bound to fail. under these circumstances i think the best course we can take is, putting on one side the question of law argued before us, to consider only the one substantial point taken by the judgment-debtor, namely, that his allegation as to the under valuation of the property by the decree-holder has never been enquired into. it follows that they are questions within section 47. the decision complained of was, therefore, a determination, call it what you like, of a question under section 47. from such determination an express right of appeal is given by the code. it is clear law binding upon us that such questions as were raised..........court certain objections to the drawing up of the sale proclamation in the terms proposed by the decree-holder.2. one objection was that the decree-holder was describing the whole of the property in question as non ancestral, where as a part of it was ancestral. the judgment-debtor did not specify what was the part of the property to which this objection referred, and as a matter of fact we are informed that the sale proclamation actually drawn up related only to a portion of the property covered by the decree and that this portion was certainly non-ancestral. another objection taken was that the specification of the property sought to be sold was incorrect. apparently the decree-holder was in a somewhat unfortunate position. his decree purported to give the description of the property.....
Judgment:

Piggott, J.

1. This is an appeal by a judgment-debtor in an execution case. A decree bad been passed under Order XXXIV, Rule 5, of the Code of Civil Procedure for sale of certain mortgaged property. Notice was issued to the parties fixing the 6th of October as the date on which the Court would proceed to hold an enquiry under the provisions of Order XXI, Rule 66, of the Code of Civil Procedure with a view to drawing up a proper sale proclamation. On that date the judgment debtor put in what is described as a petition of objection. On the face of it the most substantial point taken appears to be that the judgment-debtor was seeking for a review of the decree, and he wished to have a postponement of the execution proceedings until his application for review of the decree should be disposed of. For reasons not apparent on the face of the record, the learned Judge of the Court below evidently viewed this application with the utmost disfavour and was strongly disinclined to order a postponement of the execution proceedings. I may note that the judgment-debtor's application for review of the decree has since failed, and it may be that the learned Judge of the Court bellow had reasons for supposing that it was bound to fail. It so happened, however, that the judgment-debtor, besides asking for the postponement of the proceedings, laid before the Court certain objections to the drawing up of the sale proclamation in the terms proposed by the decree-holder.

2. One objection was that the decree-holder was describing the whole of the property in question as non ancestral, where as a part of it was ancestral. The judgment-debtor did not specify what was the part of the property to which this objection referred, and as a matter of fact we are informed that the sale proclamation actually drawn up related only to a portion of the property covered by the decree and that this portion was certainly non-ancestral. Another objection taken was that the specification of the property sought to be sold was incorrect. Apparently the decree-holder was in a somewhat unfortunate position. His decree purported to give the description of the property ordered to be sold in village Rajpur according to the entries in the existing village papers; yet the copies of those entries put in by the decree-holder himself were not in exact accordance with the terms of the decree. This was a matter for the decree-holder to attend to. If his decree was inaccurate, that is to say, if the decree stated that the property to be sold was described in the existing village papers in such and such terms, whereas it was actually described in slightly different terms, it was obviously advisable for him to secure a correction of the decree. He could not, however, execute the decree otherwise than in accordance with its (sic) and the judgment-debtor's objection that the sale proclamation should be drawn up in terms different from those of the decree was not an arguable one. The third point taken was as to the valuation of the property proposed to be sold. The judgment-debtor's point was that the decree holder was grossly undervaluing it. This point the learned Subordinate Judge seems to have altogether overlooked. He evidently regarded the judgment-debtor's petition as in substance a mere attempt to gain time. He thought the objections taken, apart from the application for adjournment, to be merely frivolous objections, and he does not seem to have set himself to enquire whether the objection with regard to the valuation of the property had any substance in it or not. It is a matter in which it was incumbent on the Court to make a careful enquiry. If after issue of notice under Order XXI, Rule 66, of the Code of Civil Procedure the Court finds that the decree-holder and the judgment-debtor are seriously at issue with regard to the valuation of the property to be entered in the sale proclamation, it is certainly admissible that it should go into the matter and determine it judicially, instead of accepting without question the decree-holder's valuation and leaving it open to the judgment-debtor to raise objections after the sale has taken place. When the present appeal, however, came up for hearing an objection was immediately taken on behalf of the decree-holder-respondent to the effect that no appeal lies from such an order as the one now in question. This objection is supported by a certain amount of authority, more particularly by the case of Sivagami Achi v. Subrahmania Ayyar 27 M. 259 : 14 M.L.J. 57 and some cases of the Calcutta High Court reported in Volumes 3, 10, 12 and 17 of Indian Cases. If, however, the order now before us is to be treated as a judicial determination between the parties that the valuation sought to be put upon the property in the sale proclamation was correct, then it is difficult to see how the judgment-debtor can be precluded from appealing to this Court against that decision, in view of the definition of the word 'decree' given in the present Code of Civil Procedure, Section 2 (2), and the reference to Section 47 of the same Code made in the said definition. It seems to have been taken for granted in the Madras and other cases referred to above that a judgment-debtor would always be able to raise the question under the provisions of Order XXI, Rule 90, if he could show that the property sold had in fact been undervalued in the sale proclamation and that he had suffered loss in consequence. But the question which we have to consider is whether, it a, judgment-debtor has raised the point at a previous stage under Order XXI, Rule 66, and it can be shown to have been judicially determined against him, he could be permitted to raise it at any subsequent stage. Under the circumstances of this particular case, I think we need not go into the general question of law involved, It might be equally dangerous to lay it down that all orders passed by an executing Court in the course of proceedings held under Order XXI, Rule 96, of the Code of Civil Procedure, are decrees, and appealable as such, as to lay it down that no order which can possibly be passed under the above circumstances can amount to an appealable decree. In the present case the real purpose of the judgment-debtor's application has been served by the mere admission of the appeal by this Court. There has been an order staying proceedings and before any sale can now take place, there will have to be a fresh sale proclamation. Under these circumstances I think the best course we can take is, putting on one side the question of law argued before us, to consider only the one substantial point taken by the judgment-debtor, namely, that his allegation as to the under valuation of the property by the decree-holder has never been enquired into. I would propose, therefore, formally to dismiss this appeal, making no order as to costs; but at the same time to note that the question of the valuation of the property raised by the judgment-debtor's objection has not been judicially determined between the parties and should be considered by the Court below before drawing up the fresh proclamation which will now be necessary.

Walsh, J.

3. I agree substantially in the order proposed, except that I think that we are allowing the appeal and not dismissing it. We are not deciding anything beyond the legal consequence of the facts in this particular case. For my own part I do not propose to add to the existing confusion by attempting to lay down any general principle as to the right of appeal under this section. The effect of laying down general propositions beyond the facts of the particular case which a Court has to decide invariably leads to conflict of authorities and to confusion. It is quite plain that one decision at any rate, namely, that no order under the section is appealable, goes too far. It was not necessary for the decision which was come to in that case to say what the Court said, and to that extent it is impossible to agree with that decision. In my opinion the appeal is admissible in this ease for the following reasons. On the 6th of October after notice given to them under Order XXI, Rule 66, the judgment-debtors filed eight grounds of objection in writing. On the 7th October seven grounds were filed by the decree-holders in writing, stating the reasons why the objections of the judgment-debtors ought to be rejected. Upon a consideration of these fifteen paragraphs of controversial pleadings the Court below dismissed the objections. To my mind that was a judicial decision. The questions raised on the objections which were fought and determined, were questions which are indicated in Order XXT, Rule 66. It cannot be denied that they are questions arising between the parties. It cannot be denied that they are questions relating to the execution of the decree. It follows that they are questions within Section 47. The decision complained of was, therefore, a determination, call it what you like, of a question under Section 47. From such determination an express right of appeal is given by the Code. If I were not led by the language of the Code to this conclusion, I should be driven to it by a decision of the Privy Council. It is clear law binding upon us that such questions as were raised by the judgment-debtors in this case, cannot be raised by them after sale, if they subsequently allege loss and attack the sale, when they have had an opportunity of raising them in this manner and have failed to avail themselves of it. The Privy Council has so decided. That decision means that having had an opportunity of obtaining a judicial decision upon a question and having neglected to take it, they must be taken as between themselves and the decree-holder to have abandoned the point for all time. It seems, therefore, to me that to hold otherwise than we are holding in this case would be to say, in respect of the same matter, that if the judgment-debtor did not avail himself of the opportunity there was a decision against him; but that if he did avail himself of the opportunity, there was no decision and he cannot appeal. Such a result would seem to me to be illogical, and as I find that the appellant's contention is consistent with the plain language of the Code I hold that in this case there is a right of appeal. I agree in the order proposed.

4. The appeal is dismissed. No order as to costs.


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