Skip to content


The Firm of Fakirbhai Karsanji and ors. Vs. Gulabbhai Khandubhai Desai and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtGujarat High Court
Decided On
Case NumberA.F.O.D. No. 65 of 1961
Judge
Reported inAIR1964Guj277
ActsCode of Civil Procedure (CPC) , 1908 - Sections 38 - Order 21, Rules 17 and 66(2)
AppellantThe Firm of Fakirbhai Karsanji and ors.
RespondentGulabbhai Khandubhai Desai and ors.
Appellant Advocate N.R. Oza and; B.R. Shah, Advs.
Respondent Advocate B.J. Shelat and; R.N. Shah, Advs.
DispositionAppeal dismissed
Excerpt:
- - the lower court should consider only this decree and not other decrees and should see whether the condition or requirement of ibis proviso has been satisfied or not and whether the house has diminished in value at the time of this order. code has been satisfied and pass fresh orders......21, rule 17(4), c. p. code, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree. it is contended that a house was attached in 1957 by the decree-holder himself valued at rs. 1,50,000/- and the money decree is only for about rs. 60,000/-. it is, therefore, contended that the condition of the proviso has not been complied with. the lower court should consider only this decree and not other decrees and should see whether the condition or requirement of ibis proviso has been satisfied or not and whether the house has diminished in value at the time of this order. the lower court should, therefore, go into the question and take evidence as to the value of the property i.e. the.....
Judgment:

V.B. Raju, J.

1. This is an appeal by the original defendants Nos. 1, 2, 5 and 4. A money decree had been passed against a, joint family formed of the defendants for about fifty thousand rupees, and certain properties were attached in execution of the decree. The attachment and sale of those properties are now challenged in this appeal on the following four grounds:

(1) The decree sought to be executed is a decree of the trial Court and not the decree of the appellate Court and therefore the whole execution proceedings should be set aside;

(2) There was an amendment application to the Darkhast, which prayed that some more properties should be attached. The prayer for attaching more properties should be made by an independent Darkhast or execution application and not by way of amendment application;

(3) Each of the appellants is an agriculturist;and

(4) The property is under-valued in the sale proclamation.

2. Regarding the first contention that a decree of the trial Court is not executable, this point has no substance, because the appellate Court admittedly confirmed the decree of the lower Court. It the appellate Court does not vary or set aside the decree of the lower Court and merely confirms it, the decree of the lower Court stands and is not destroyed or varied, although the decree of the trial Court merges with the decree of the appellate Court. That point* is not important when the decree of the trial Court is confirmed and when the execution application is in time, whether we take the application as one to execute the appellate Court's decree or the trial Court's decree. It is true that in the execution application, there is no reference to the fact that the decree of the trial Court is confirmed by the appellate Court. But the fact that the decree of the trial Court is confirmed by the appellate Court is conceded by the learned counsel for the appellants. We can, therefore, treat the execution application as an aplication for executing the appellate Court's decree. There is, therefore, no merit in this point.

3. Regarding the second point, no doubt as held by me and as held by various High Courts, there cannot be an amendment application to add more property to be sold or attached. That should be done by an independent execution application. But in this case, again, this point has no substance, because on the date of the amendment application, a new application for execution would not have been barred by time. We can therefore treat the amendment application as an independent application, which would require extra court-fees to be paid. The decree-holder should therefore pay extra court-fees.

4. Regarding the point that each of the appellants is an agriculturist we find that the decree is against the joint family of the appellants and the property sought to be attached and sold also belongs to the joint family. There is no averment in the evidence of any of the appellants that the joint family is an agriculturist, and therefore it is not necessary to consider the question whether any of the individual judgment-debtors the appellants, is an agriculturist. When there is no allegation that the joint family is an agriculturist, there is no merit in the objection that the property cannot be attached because the property belongs to an agriculturist.

5. Regarding the last contention that the property sought to be sold is under-valued in the sale proclamation. I have already taken the view that the property should not be valued in the proclamation of sale, but what should be stated in the proclamation, among others, is every other thing which the Court considers material for a purchaser to know in order to judge the nature and value of the property. It is for the purchaser to judge the value of the property and not for the Court to value it. The value of the property is dealt with in Rule 66(2)(e) of Order 21, C. P. Code, and it should not be stated by the Court in the proclamation, because after all it is a matter of opinion, and the Court cannot give its opinion on such a point. On the contrary, it is an opinion to be formed by the prospective purchaser himself.

6. Under the proviso to Order 21, Rule 17(4), C. P. Code, in the case of a decree for the payment of money, the value of the property attached shall, as nearly as may be, correspond with the amount due under the decree. It is contended that a house was attached in 1957 by the decree-holder himself valued at Rs. 1,50,000/- and the money decree is only for about Rs. 60,000/-. It is, therefore, contended that the condition of the proviso has not been complied with. The lower Court should consider only this decree and not Other decrees and should see whether the condition or requirement of ibis proviso has been satisfied or not and whether the house has diminished in value at the time of this order. The lower Court should, therefore, go into the question and take evidence as to the value of the property i.e. the house and the lands as they stand at present and whether the condition of the proviso to Rule 17(4) of Order 21, C. P. Code has been satisfied and pass fresh orders.

7. The appeal is dismissed. The appellants should pay two-thirds of the costs of the respondents.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //