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(Kumar) Pashupati Nath Maliah and anr. Vs. Bank of Behar - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1932Cal141,136Ind.Cas.465
Appellant(Kumar) Pashupati Nath Maliah and anr.
RespondentBank of Behar
Cases ReferredLachina v. Barneswar Prosad Singh
Excerpt:
- .....against an order of the subordinate lodge of burdwan, by which he has directed that in the sale proclamation to be issued for sale of the property in dispute, valuations given by the decree-holder and the judgment debtor be both inserted. the judgment-debtor objects that the court should have inquired into the value of the property and should have given it in the sale proclamation. the property, we are told, consists of 3 bighas of land with a bungalow standing on it near the burdwan railway station. the decree-holder valued it at rs. 2,000, whereas the judgment-debtor said that it was worth rs. 40,000. the learned subordinate judge has directed both the valuations to be inserted in the sale proclamation on the ground that an elaborate investigation should be necessary in order.....
Judgment:

Suhrawardy, J.

1. This rule is directed against an order of the Subordinate lodge of Burdwan, by which he has directed that in the sale proclamation to be issued for sale of the property in dispute, valuations given by the decree-holder and the judgment debtor be both inserted. The judgment-debtor objects that the Court should have inquired into the value of the property and should have given it in the sale proclamation. The property, we are told, consists of 3 bighas of land with a bungalow standing on it near the Burdwan railway station. The decree-holder valued it at Rs. 2,000, whereas the judgment-debtor said that it was worth Rs. 40,000. The learned Subordinate Judge has directed both the valuations to be inserted in the sale proclamation on the ground that an elaborate investigation should be necessary in order to ascertain its value roughly by an engineer, and the evidence on both sides should be taken as to the price of the land. We think that in the circumstances of the case the order of the Subordinate Judge cannot be maintained.

2. On the question as to whether in the sale proclamation valuations given by the parties should be inserted without an enquiry by the Court, I have expressed myself at some length in our judgment in Lachira v. Rameswar Singh in Civil Rule No. 370 of 1928, Decided on 4th April 1928, which is to be found reported in : AIR1930Cal781 . The matter has again been placed before us and I like to say a few more words in support of the view I am inclined to take in this connexion.

3. No doubt the law does not make it obligatory upon the Court to put in the value of the property to be sold under! Order 21, Rule 66, Civil P.C., and if the Court! does not consider it necessary to ascertain the value of the property and does! not put it in the sale proclamation, it may be said that the omission does not amount to material irregularity: Daulat Bhuiya v. Rahisa Banu : AIR1931Cal490 . On the other hand, we have the pronouncement of the Judicial Committee in Saddatmand Khan v. Phul Kuar [1898] 20 All. 412 that value of the property to be sold is a very material fact, and if the Court in cases where it ought to be mentioned fails to mention it, it may be argued that the omission amounts to an irregularity.

4. Under Order 21, Rule 66 (2)(e) sale proclamation

shall specify its 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. If under this head, the Court considers that information about the value of the property is material in order to enable the purchaser to judge of its nature and value, it should in terras of that rule specify 'as fairly and accurately as possible' what such value is; and that is what their Lordships of the Judicial Committee laid stress upon in Saadatmand Khan's case, where they observed:

whatever material fact is stated in the proclamation (and the value of the property is a very material fact) must be considered as one of those things 'which the Court considers material for the purchaser to know,' and it is enacted in terms (though express enactment is hardly necessary for such an object) that those things shall be stated as fairly and accurately as possible.

6. The position therefore is this: if the Court does not consider that the value of the property should be mentioned in the proclamation, on account of the peculiar nature of the property, it may not do it. But if on the other hand it considers that the value is a material piece of information for an intending-purchaser it should be put 'as fairly and accurately as possible.'. Except in exceptional cases whore 'it is not possible to ascertain the value or where it may be found that in the circumstances of the case the value need not be ascertained, the Court is bound to put a fair and accurate value in the proclamation. We have expressed this view in the case above referred to and it has since been accepted in Debendra Nath Sadhu Khan v. Radhakissen Chamaria : AIR1931Cal520 . In Bejoy Chand Mahatab v. Ashutosh Chakravarty A.I.R. 1921 Cal. 494 the nature of the property was not mentioned, but it is said there that it; was difficult to ascertain the value of the property. Reference has been made to a decision of the Madras High Court in Thiruvengadaswamy Ayyangar v. Govindda steamy Udayar A.l.R. 1928 Mad. 503. The facts of that case arc quite different. There the Court bad inserted the valuations put by the judgment-creditor and judgment-debtor and it had also inserted the valuation arrived at by the Commissioner, and their Lordships observed:

Having regard to the fact that in this case the Commissioner's calculation has also been set out in the proclamation, the criticism based on the ground of possible confusion is not open.

7. I am however unable to agree with the general observation made in that ease that their Lordships are:

unable to see why it should be necessary for the Court to fix the valuation more especially when the reserve price is also generally fixed by the Court and the price fetched at a sale often depends upon not on what may be called the intrinsic value of the property but on the demand for the property at the time of the sale.

8. In the circumstances of this case we may adopt the remark made by the Judicial Committee) in, Saadatmand Khan's case [1898] 20 All. 412 above referred to:

It must have been possible to state the value of this property with very much greater approach to fairness and accuracy than was done in the proclamation.

9. The property is situated near the Burdwan railway station, It can safely be said that the valuation put by the! decree-holder of Rs. 3,000 of a property, 3 bighas in area with a building on it, is grossly inadequate. It is also possible, on the other hand, that the valuation put by the judgment-debtor is a fanciful price. But it should not be very difficult for the Court to come to an approximate value. The inquiry roust be a summary one and) need not be very elaborate. In order to ascertain the exact value of the property, as for the purpose of land acquisition, it may be necessary to engage an engineer to hold a local investigation. But in order to form a rough opinion as to the approximate value of the property, it may be done in a much simpler way.

10. We accordingly make the Rule absolute, set aside the order of the lower Court dated 24th January 1931 and remit the matter to that Court for proceeding according to law.

11. The petitioner is entitled to his costs in this Court hearing fee being assessed at two gold mohurs.

Graham, J.

12. I agree. The question involved in the Rule is whether we should hold that this is one of those exceptional cases in which it was open to the Court; to specify in the sale proclamation the value given both by the judgment-debtor and the decree-holder respectively, or whether the Court should have made an inquiry and formed its own independent conclusion on the point. The authorities go to show that it is not an infallible rule that such an enquiry should be made especially whore it appears that such an inquiry will involve considerable delay or expense, or again where the value may for some reason or other be difficult to ascertain. The learned Subordinate Judge has given some reasons for not mating any enquiry. But those reasons do not appear to be very pertinent. Such an enquiry need not necessarily be a long and expensive proceeding. What is contemplated is a summary inquiry and that the Court should upon the materials placed before it form its own estimate of the approximate value of the property to be sold. This duty ought not to be shirked as was held by my learned brother and myself in the case of Lachina v. Barneswar Prosad Singh : AIR1930Cal781 . There may be exceptional oases where such an inquiry may be dispensed with and where the value sot upon the property by the parties may be properly inserted in the sale proclamation. This however does not seem to be a case of that description. A fact which has influenced me in taking this view of the present case is that the decree-holder has fixed what appears prima facie to be a manifestly inadequate price as the value of the property, namely Rs. 2,000 only. The judgment-debtor on the other hand has estimated the value of the property at Rs. 40,000. So that there in a very great divergence in the two estimates. Having regard to the description of the property involved, Rs. 2,000 seems manifestly to be an under-valuation and when such a low value is stated in the sale proclamation it is not unlikely that prospective purchasers may be misled thereby and the result may be prejudicial to the interest of the judgment-debtor.


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