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Basanta Kumar Choudhury Vs. Sylhet Loan Co., Ltd. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal576
AppellantBasanta Kumar Choudhury
RespondentSylhet Loan Co., Ltd.
Cases ReferredKumar Pashupoti Nath v. Bank of Behar
Excerpt:
- .....that there was on the land some kind of oil-well which alone, as he said, would confer on the property a value of at least five lacs of rupees.2. the matter came before the subordinate judge of sylhet on 26th september 1931. as a result of the proceedings, then had before him, he made the following order:heard decree-holder's pleader about the probable nature of the lands to be set forth in the proclamation of sale. the judgment-debtor objector has proposed a very high value. it is unnecessary to enter into evidence. lot the values set forth by both parties be noted in the proclamation of sale. but the decree-holder will not be bound by the statement of value given by the judgment-debtor.3. that order of 26th september 1931, is now called in question in the present proceedings.....
Judgment:

Costello, J.

1. This is an application made on behalf of a judgment-debtor Basant Kumar Chowdhury under the provisions of Section 115, Civil P. C., and to which the Sylhet Loan Co., Ltd., who were the judgment-creditors, are the opposite parties. The Company obtained a mortgage decree against the present applicant and his two brothers for a sum of Rs. 24,823-0-7, which decree is dated 9th June 1927. On 26th February 1931, the present opposite party sought to put the decree to execution in order to obtain payment of a sum of Rs. 28,307-14-7 which was the amount of the decree less a sum of Rs. 2,433-0-0 which had already linen recovered from the debtor. The decree-holders gave the value of the mortgaged properties as described in two schedules, as Rs. 21,307-0-0 and they also set forth that there was a claim in -expect of a mortgage decree obtained by another person as regards the lands mentioned in the first schedule, which decree was for the amount of six or seven thousand rupees. On 27th June 1931, the judgment-debtor, that is to say, the present applicant, filed an objection concerning the valuation of the properties under the provisions of Order 21, Rule 66, Civil P.C., and in that objection he stated that the valuation given by the decree-holders of every lot comprising the property was grossly inadequate and that the real valuation of those lots was m the neighbourhood of Rs. 6,75,100 The judgment-debtor, accordingly, asked that the Court should determine what was the real valuation of the property after taking evidence for that purpose. The applicant seems to have alleged that there was on the land some kind of oil-well which alone, as he said, would confer on the property a value of at least five lacs of rupees.

2. The matter came before the Subordinate Judge of Sylhet on 26th September 1931. As a result of the proceedings, then had before him, he made the following order:

Heard decree-holder's pleader about the probable nature of the lands to be set forth in the proclamation of sale. The judgment-debtor objector has proposed a very high value. It is unnecessary to enter into evidence. Lot the values set forth by both parties be noted in the proclamation of sale. But the decree-holder will not be bound by the statement of value given by the judgment-debtor.

3. That order of 26th September 1931, is now called in question in the present proceedings before us and we are asked to say that that order ought to be set aside or varied on the ground that the Subordinate Judge acted with material irregularity of such a character as to bring the matter within the ambit of Section 115, Civil P. C, in that it was not right in the circumstances of this case that he should have directed that the valuation put forward by each of the parties should be stated in the proclamation of sale instead of some valuation arrived at after an inquiry made by himself. There have been a large number of applications of this character within a recent period and there are now extant a large number of authorities dealing with this point. I think it is necessary that we should remind ourselves of the precise terms of the rule under which an execution matter of this character falls to be dealt with. Rule 66, Order 21, Sub-rule (2), says:

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.

five categories of matters, the last of which under the denomination (e) is referred to thus:

Every other thing which the Court considers material for the purchaser to know in order to judge of the nature and value of the property.

4. Reading Sub-clause (e) in conjunction with the operative part of Sub-rule (2) we get the following:

Such proclamation .... shall state the time and place of sale, and specify as fairly and accurately as possible 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.

5. There are, as I have said, a large number of authorities including a decision of the Judicial Committee of the Privy Council, Saadatmand Khan v. Phul Kuar [1898] 20 All. 412 which provide a commentary upon the meaning and extent of that subrule, and I think it is hardly necessary that I should refer in detail to the whole of these authorities. It will be sufficient for the purposes of. the present matter if I refer only to one of the most recent of them, viz., the decision in the case of Kumar Pashupoti Nath v. Bank of Behar : AIR1932Cal141 . That is a decision of Suhrawardy and Graham, JJ., and their judgment is accurately summarized in the head-note of the case which reads as follows:

If the Court does not consider that the value of the property should be mentioned in the sale proclamation in view of the nature of the property, it need not mention it. But if it considers that the value is a material piece of information for an intending purchaser, it should he put 'as fairly and accurately as possible.' In such cases, the Court is bound to put a fair and accurate value in the proclamation, except in exceptional cases where it is not possible to ascertain the value or where in the circumstances of the case the value need not be ascertained.

6. The head-note continues:

Consequently 'where the decree-holder obviously understates the value and the judgment-debtor possibly overstates it and the circumstances are not such that an approximately correct value cannot be ascertained, the Court cannot merely put down the valuations given by the parties.

7. The latter of those propositions forms merely an addendum to what has been laid down in the previous cases to the effect that generally speaking, the Court ought to endeavour to arrive at a proper estimation of the value of the properties concerned, but in exceptional cases it is open to the Court to deal with the matter upon the footing of stating the valuations given by each of the parties respectively. The whole matter, I think, may be summarized in this way: first, it is not always necessary that any valuation should be given; secondly, if a valuation is given, that is to say, if a definite statement of the value is made, that valuation must have been arrived at after holding a reasonable inquiry for ascertaining what the value is and thirdly, in exceptional cases the Judge may deal with the matter, as it was dealt with in the present instance, and if he is of opinion that, to give the two extreme figures representing the respective valuations of the property is all that is necessary to provide

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,

then in those exceptional cases it is open to the Judge to deal with the matter in that way.

8. I think, we ought to emphasize the fact that, as a general rule, there ought to be some kind of inquiry into the value and that the Court dealing with the matter ought to endeavour to ascertain as fairly and accurately as possible what the value of the property is, in order that the intending purchaser may have a reasonably clear idea of the value of the property which is being offered for sale. Consequently, it is really,, only in exceptional cases where it would be difficult, if not an impossible task, to estimate the value of the property concerned, that the matter should be dealt with by way of stating the values put. upon the properties by each of the parties respectively. However the authorities all seem to show that there may be cases where it will be sufficient to deal with the matter by stating the two values and indeed it has been conceded quite frankly and definitely on behalf of the present applicant that such is, in fact, the state of the law. That being so, it would seem that the position is that broadly speaking, it is for the Judge who is dealing with the execution matter, to form his own opinion as to whether or not the circumstances are such that the case can properly be considered to be of such an exceptional nature that he ought not to embark upon an inquiry as to the value, but merely to state the valuations given by the decree-holder and the judgment-debtor respectively.

9. I am bound to say that in the present instance the matter was not dealt with by the learned Judge in an altogether satisfactory manner because as was urged by Mr. Dutt on behalf of the applicant the learned Judge has not in terms said that in his opinion this is an exceptional case and that therefore to embark upon an inquiry as to the value, would have-been an unprofitable and futile proceeding. He has merely said that 'it is. unnecessary to enter into the evidence.' Upon the face of it therefore it rather looks as if the learned Judge had shrunk from the task of endeavouring to arrive at some conclusion as to the value of the property which was being put up for sale. But I think, we must take it, that the real intention underlying this somewhat equivocal order was that the Judge did feel that in the circumstances of this case, it was one which might properly be dealt with merely by setting forth the values given by the two parties and as the terms of Rule 66 itself and all the relevant decisions upon the rule do indicate, that there is some discretion with the Judge who comes to deal with a matter of this kind. I think, on the whole, there is nothing here in the nature of such a material irregularity as to warrant us to interfere in the matter 'under the terms of Section 115, Civil P. C.

10. It cannot be said, in my opinion, that the learned Judge dealt with the matter in a way which was not at all open .to him. Directly it is conceded that there arc cases in which an execution matter of this character may be dealt with in this fashion; then it seems to me that there is some discretion left to the Judge as to the manner in which he should deal with the matter and therefore look-in;; at the case from that point of view I think it cannot be said that the Judge has failed to cause the proclamation to state and specify as fairly and accurately as possible every other thing which the Court, that is to say, in this case the learned Subordinate Judge of Sylhet, considered material for a purchaser to know in order to judge of the nature and value of the property. It is to be observed that this sub-clause read with the operative part of the rule does not require in terms, that proclamation shall in fact state the value of the property. It merely requires that the proclamation shall state fairly and accurately that which the Court considers material for the purchaser to know in order to judge for himself of the value of the property. It appears that in this case the learned Judge was merely of opinion that it was sufficient for the purchaser to know, in order to judge of the value of this particular property, what were the estimated values put upon the property by the decree-holder and the judgment-debtor respectively. In all the circumstances therefore we think, we ought not to interfere with the order under the powers given by Section 115, Civil P. C. We accordingly discharge the rule. There will be no order as to costs.

Jack, J.

11. I do not think it necessary to dissent from the order passed by my learned brother but I must say that, in view of the language employed by the Court below in passing the order, it appears to me very doubtful if it can be said that in this case the proclamation of sale did as required by Order 21, Rule 66:

specify as fairly and accurately as possible every other thing which the Court considered material for a purchaser to know in order to judge of the nature and value of the property.


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