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Ajodhia Prasad Vs. Gopi Nath and anr. - Court Judgment

LegalCrystal Citation
CourtAllahabad
Decided On
Judge
Reported in1917AIHC349; 39Ind.Cas.578
AppellantAjodhia Prasad
RespondentGopi Nath and anr.
Excerpt:
.....held by the court under order xxi, rule 66 for the purpose of specifying in a proclamation of sale the matters which are required by the rule to be specified, including 'every other thing which the court might consider material for a purchaser to know in order to judge of the nature and value of the..........rs. 27,000. the present appeal is from this order.2. a preliminary objection is taken that no appeal lies and the case of sivagami achi v. subrahmania ayyar 27 m. 259 ; 14 m.l.t. 57 is cited. it is a full bench ruling of the madras high court and is exactly in point. i agree with this ruling. the appeal lies, if at all, because the question in the court below related to the 'execution discharge or satisfaction' of the decree within the meaning of section 47 of the code of civil procedure. i do not think that it can ever have been intended that matters of this description should be subject to an appeal. the court judicially decides nothing. if an appeal lies in a case like the present, it would equally lie if the court refused an application of judgment-debtor for the adjournment of.....
Judgment:

1. This appeal arises under the following circumstances. A decree was obtained for Rs. 18,055. The decree-holder made an application for execution and certain property was advertised for sale. The decree-holder stated that the estimated value of the property was Rs. 6,880. This was a calculation based on the revenue. One Hulas Rai, a witness for the decree-holder, stated that he was prepared to buy the property for Rs. 27,000. The judgment-debtor objected and said that the property was worth Rs. 35,000. The Court estimated the value of the property at the sum which Hulas Rai stated he was prepared to give, namely, Rs. 27,000. The present appeal is from this order.

2. A preliminary objection is taken that no appeal lies and the case of Sivagami Achi v. Subrahmania Ayyar 27 M. 259 ; 14 M.L.T. 57 is cited. It is a Full Bench ruling of the Madras High Court and is exactly in point. I agree with this ruling. The appeal lies, if at all, because the question in the Court below related to the 'execution discharge or satisfaction' of the decree within the meaning of Section 47 of the Code of Civil Procedure. I do not think that it can ever have been intended that matters of this description should be subject to an appeal. The Court judicially decides nothing. If an appeal lies in a case like the present, it would equally lie if the Court refused an application of judgment-debtor for the adjournment of the hearing of an execution objection. An order of the Court refusing such an application for an adjournment would have 'related to the execution, satisfaction, or discharge' of the decree just as much and just as little.

3. I may mention in this connection how the question of the value of the property arose. Order XXI, Rule 66, sets forth the matters which shall be contained in a sale proclamation. The Rule is as follows: 'Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor, and shall state the time and place of sale and specify as fairly and accurately as possible

(a) the property to be sold,

(b) the revenue, etc.,

(c) any incumbrance to which the property is liable,

(d) the amount for the recovery of which the sale is ordered, and

(e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.

4. It is only under Clause (e) that the Court is in the habit of estimating what it considers to be the value of the property. It is obvious that the Court cannot actually decide the value of the property, it can only make an estimate Had I been the Court disposing of this matter, I would have been very much inclined to have set forth that the Court estimated the value at the sum of Rs. 27,000. but that the judgment-debtor had urged that the property was of greater value and was valued for Rs. 35,000. Had a note to this effect been added, there could have been no ground for the present appeal and intending purchasers would have had the information for what it was worth. No one would be deceived. In my opinion the preliminary objection has force but even if it has not, I think that this appeal should be dismissed on the merits.

Banerji, J.

5. I also am of opinion that the preliminary objection raised on behalf of the respondent that no appeal lies is Well founded. The order complained of is an order relating to proceedings held by the Court under Order XXI, Rule 66 for the purpose of specifying in a proclamation of sale the matters which are required by the rule to be specified, including 'every other thing which the Court might consider material for a purchaser to know in order to judge of the nature and value of the property.' I have no doubt that the proceeding held under the rule are of an administrative nature and not judicial proceedings. The Court can in no sense be held to have determined judicially, as between the decree-holder and the judgment-debtor, what the value of the property actually is. An estimated value is all that is required to be given in order to enable intending bidders to judge of the nature and value of the property. An order declaring the estimated value cannot be said to be an order relating to the execution, discharge or satisfaction of the decree within the meaning of Section 47 of the Code of Civil Procedure. It is consequently not a decree and no appeal lies from such an order. I would dismiss the appeal.

6. By the Court.--We dismiss the appeal with costs including in this Court fees on the higher scale.


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