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(Lala) Nathu Lal Vs. Shri Mati Yashodha Devi - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1932All136
Appellant(Lala) Nathu Lal
RespondentShri Mati Yashodha Devi
Excerpt:
- - we are of the opinion that this preliminary objection is well founded. we are also satisfied that there is no force in this appeal on the merits. on the date fixed for hearing we are satisfied upon the affidavit of mr......66, were filed by the judgment-debtor on 22nd july 1929. the effect of the objections was that the value of the properties as estimated by the decree-holder was inadequate and that the properties should be sold in separate lots. these objections came up for hearing on 26th october 1929 when the judgment-debtor's counsel was not present; nor was he himself present, and his witnesses were also absent. the court therefore dismissed the objections for default, with costs, and the present appeal is directed against this order dismissing the objections in default.2. a preliminary objection has been taken on behalf of the respondent to the effect that no appeal lies. we are of the opinion that this preliminary objection is well founded. the contention that has been advanced on behalf of the.....
Judgment:

Bajpai, J.

1. This is headed as an execution first appeal. The facts which have led to this appeal may be stated as follows: A final mortgage decree for about Rs. 1,400 was passed on 25th February 1929. An application for execution of decree by sale of the hypothecated properties was submitted on 22nd April 1929, and on that application notices under Order 21, Rule 66, were issued to the judgment-debtor. After some adjournments, objections under Order 21, Rule 66, were filed by the judgment-debtor on 22nd July 1929. The effect of the objections was that the value of the properties as estimated by the decree-holder was inadequate and that the properties should be sold in separate lots. These objections came up for hearing on 26th October 1929 when the judgment-debtor's counsel was not present; nor was he himself present, and his witnesses were also absent. The Court therefore dismissed the objections for default, with costs, and the present appeal is directed against this order dismissing the objections in default.

2. A preliminary objection has been taken on behalf of the respondent to the effect that no appeal lies. We are of the opinion that this preliminary objection is well founded. The contention that has been advanced on behalf of the appellant is that a Court, when it decides objections under Order 21, Rule 66, is proceeding under Section 47, Civil P.C., and therefore under Section 2 of the same Code such an order is a decree and is appealable as a matter of right. It is true that the words of Section 47, Civil P.C., are very wide and, if they were taken in their literal sense, they might cover every order of an interlocutory nature that may be passed in execution proceedings, but it is obvious that the intention of the legislature could not have been that every such order should be appealable as a decree. It is only those orders which conclusively determine the rights and liabilities of the parties with reference to the reliefs granted by the decree that can be said to be appealable within the meaning of Section 2, Civil P.C. If any other view ware taken, the result would be that the execution proceedings could be estopped almost at any stage by the judgment-debtor going up in appeal against orders which are more or less of an interlocutory character. The main contention of the judgment-debtor in the present case was that the value which was put upon the properties by the decree-holder as an estimated value was an incorrect value, and the Court was asked to put a proper valuation in the sale proclamation. Such a valuation can never possibly be said to be final in any sense of the term.

3. It can only serve as a guide to the prospective purchasers who can form their independent opinion in the matter also. If the Court somehow or other fixes an inadequate value and by reason of that fact the judgment-debtor is materially prejudiced at the time of the sale, then it would always be open to him later on under Order 21, Rule 90, to attack the sale on that ground. Order 21, consists of several rules and, if the contention of the appellant were allowed then every order passed under any of these rules would be a decree, because in one sense or another it relates to execution, satisfaction or discharge of the decree, but it is obvious that some of these orders are not decrees, because a specific provision is made for certain appeals as from orders. For instance, in Order 43, Rule 1, it is stated that an order under Rule 34, under Rule 72 and under Rule 92 would be appealable as an order. Therefore, it is clear that every order under Order 21, is not a decree. Almost every High Court in India has come to the same conclusion. It has been stated: in several cases that an order under Order 21, Rule 66, is of an administrative nature and not of a judicial character: see the case of Deoki Nandan Singhh v. Bansi Singh [1912] 10 I.C. 371. In Madras there are a long series of cases which have arrived at the same conclusion: see the case of Sivagami Achi v. Subrahmania Ayyar [1904] 27 Mad. 259 and the case of Meenakashisundram Pillai v. Chohka Linga Pathan A.I.R. 1929 Mad. 506, where the entire case law on the subject has been reviewed. In the case of Krishnarao Ambadas v. Krishnarao Baghunath A.I.R. 1928 Bom. 245, the Bombay High Court has also taken the same view. A Special Bench of the Patna High Court in the case of Mohit Narain Jha v. Thankan Jha A.I.R. 1928 Pat. 500, has also accepted the same view. Our own High Court in the cases of Ajudhia Prasad v. Gopi Nath [1917] 39 All. 415 and Alimuddin v. Gobind Prasad : AIR1927All208 , has come to the same conclusion.

4. We therefore find that the force of authorities is entirely in support of the preliminary objection. These cases have; also laid down that at the proper time it will be open for the aggrieved party to attack the order which has fixed the estimated value of the properties or which has directed the properties to be sold in certain lots. It is however conceivable, that in some cases where the properties have been ordered to be sold in certain lots an order of this nature might effectually determine the equities of the parties. For instance where there are several defendants and the Court has ordered the properties to be sold in a particular manner, in that case it is possible to hold that amongst co-defendants there has been an adjudication which effects substantial rights of the various defendants inter se, but this is not the case here where all the properties belong to the same individual. We are informed by Mr. Gurtu who appears on behalf of the respondent that the properties were as a matter of fact actually sold in different lots, and to that extent the judgment-debtor was in no way prejudiced. We 'therefore allow the preliminary objection and hold that no appeal lies. We are also satisfied that there is no force in this appeal on the merits. On the date fixed for hearing we are satisfied upon the affidavit of Mr. Bose that he was engaged on behalf of the judgment-debtor to support the objections that have been filed by him and that he was unavoidably absent, being engaged in a different Court, hut there was absolutely no justification for the judgment-debtor and his witnesses to be absent at the time when the case was called on for hearing.

5. The result is that we dismiss this appeal with costs.


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