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Gayaprosad Vs. Seth Dhanrupmal Bhandari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata High Court
Decided On
Case NumberA.F.O.O. No. 183 of 1952
Judge
Reported inAIR1954Cal492,58CWN503
ActsCode of Civil Procedure (CPC) , 1908 - Section 47 - Order 21, Rule 66 and 66(2); ;Debt Law; ;Bengal Money-lenders Act, 1940 - Sections 34 and 35
AppellantGayaprosad
RespondentSeth Dhanrupmal Bhandari and ors.
Appellant AdvocateBhabanath Dutt, Adv.
Respondent AdvocateManindra Nath Ghose and ;Anil Kumar Sett, Advs.
DispositionAppeal dismissed
Cases ReferredBan Behari v. Bauk
Excerpt:
- .....rule 66, civil p. c., and other usual steps the mortgaged property was advertised for sale. the sale proclamation was issued on 3-7-1951 and the sale was fixed for 16-8-4951. two days before the date fixed for the sale, that is, on 14-8-1951, the appellant gayaprosad who was judgment-debtor no. 1 applied under section 47, civil p. c., raising objection to the proposed sale. this application was dismissed by the learned subordinate judge on 4-3-1952, and the sale was eventually held on 15-5-1952, when, it appears, the mortgaged property was sold and purchased by a third party for rs. 23000/-. on 2-6-1952, the present appeal was filed by the appellant (judgment-debtor no. 1) against learned subordinate judge's order, dated 4-3-1952, rejecting his objections under section 47, civil p. c......
Judgment:

P.N. Mookerjee, J.

1. The appellant Gayaprosad was one amongst a number of judgment-debtors under a mortgage decree. The mortgage was of the year 1935. The property mortgaged was a two-storied brick-built house at Kharagpur together with land appertaining thereto comprising an area of about 11 decimals and the amount advanced upon the mortgage was Rs. 7,500/-. In the year 1941, the mortgagee Seth Dhanrupmal Bhandari instituted Mortgage Suit No. 22 of 1941 in the First Court of the Subordinate Judge at Midnapore for the recovery of his dues under the said mortgage. The suit was decreed preliminarily on 31-1-1952, and the appeal therefrom was disposed of by this Court on 7-5-1946. Thereafter a final decree was made in the suit on 18-1-1950, and the same was put into execution on 15-3-1950, in Mortgage Execution Case No. 13 of 1950 of the First Court of the Subordinate Judge at Midnapore. After service of the usual notices under Order 21, Rule 66, Civil P. C., and other usual steps the mortgaged property was advertised for sale. The sale proclamation was issued on 3-7-1951 and the sale was fixed for 16-8-4951. Two days before the date fixed for the sale, that is, on 14-8-1951, the appellant Gayaprosad who was judgment-debtor No. 1 applied under Section 47, Civil P. C., raising objection to the proposed sale. This application was dismissed by the learned Subordinate Judge on 4-3-1952, and the sale was eventually held on 15-5-1952, when, it appears, the mortgaged property was sold and purchased by a third party for Rs. 23000/-. On 2-6-1952, the present appeal was filed by the appellant (judgment-debtor No. 1) against learned Subordinate Judge's order, dated 4-3-1952, rejecting his objections under Section 47, Civil P. C. On 11-6-1952, this appeal was admitted under Order 41, Rule 11, Civil P. C., and since then further proceedings in the execution case (Mortgage Execution Case No. 13 of 1950 of the court of the First Subordinate judge of Midnapore) have remained stayed under orders of this Court.

2. On the appellant's application under Section 47, Civil P. C., the main objection that was raised was to the effect that, as the sale proclamation had not been settled in compliance with the provisions of Section 35, Bengal Money-Lenders Act, the proceedings for sale were contrary to law and should be vacated and the execution case should commence again from the stage of settlement of the sale proclamation. The learned Subordinate Judge negatived this contention upon the view that the appellant (Judgment-debtor No. 1) not having objected in time to the settlement of the sale proclamation, or, to be more particular, to the valuation or valuations put in the sale proclamation, no such objection was open to him and it could not be entertained by the court. This decision is challenged in this appeal.

3. A preliminary objection was sought to be raised to the maintainability of this appeal on the ground that, as Section 35, Bengal Money-Lenders Act, was really part of the procedure for the settlement of the sale proclamation, the proceedings under that section were in substance proceedings under Order 21, Rule 66, Civil P. C., (Vide -- 'Mamindra Chandra v. Jagadish Chandra', 50 Cal WN 266 (A) and, as such, were not open to appeal. This objection was apparently based upon the observations, made by Sulaiman, J., in the case of --'Shyamakant Lal v. Rambhajan Singh' , Federal Court, at pages 80 and 81 of the Report, and upon the line of cases, noticed by that learned Judge there, the principle of which cases was followed in the recent decision of the Madras High Court reported in -- 'Rangachariar v. Trinity Bank, Ltd., Trichinapoly', AIR 1948 Mad 411 (C) and, still more recently, by the Allahabad High Court in -- 'Premwati v. Satyawati Jain', : AIR1953All55 (D). Side by side, however, with the line of cases, referred to above, there is another series of decisions to which belong cases of the type, reported in -- 'Devendra Nath v. Kailash Chandra' : AIR1925Cal318 , and the Full Bench decision of the Lahore High Court in the case, reported in -- 'Nasib Singh v. Amin Chandra', AIR 1942 Lah 152 (F), and, even in the very case -- , where Sulaiman, J. made his above observations, the other learned Judges expressed themselves differently (Vide the majority judgment at pages 77 and 78 of the Report).

4. In our opinion, there is a clear distinction between the two lines of cases, referred to above, and the lines of reasonings upon which they proceed are not irreconcilable. Where the order does not deal with the rights and liabilities of the parties, or is merely of an administrative character, there is no right of appeal. Where the rights and liabilities of parties are involved and there is a judicial determination of the same, an appeal is clearly maintainable. (Vide in this connection --'Basanta Kumar v. Baikuntha Nath', AIR 1926 Cal 610 (G).

5. As we are not satisfied that there are merits in the appellant's appeal, it is not strictly necessary to express any opinion on the question of maintainability of the present appeal, but we may incidentally point out that, even if that question had to be decided in this case, we would have been inclined to hold that the appeal was competent.

6. In the case before us, the question raised under Section 35, Bengal Money-Lenders Act, clearly affected the rights and liabilities of the parties and required judicial determination thereof and was without doubt so determimed by the learned Subordinate Judge and this appeal, therefore, appears to be perfectly competent in the light of the underlying principle of the series of judicial decisions as quoted and explained above.

7. In the case of -- 'Asharam Thikadar v. Bijoy Singh Chapra' : AIR1945Cal61 , this Court interfered in appeal with a decision under Section 35, Bengal Money-Lenders Act and, although no question of the competency of the appeal was raised in that particular case, there is little doubt that such objection would not have succeeded.

8. It seems to us that when an objection is raised complaining of non-compliance with Section 35 of the Bengal Money-Lenders Act, that objection has to toe judicially determined by the court and is as much an objection under Section 47, Civil P. C., as any other involving the substantive rights and liabilities of the parties. It is not merely a question of valuation -- though, generally speaking, that is the principal or the basic question in such cases, but it involves also the determination or ascertainment of how much of the disputed property is to be put up to sale and the determination or fixation of a minimum price thereof for the purpose of the said sale, the extent of the property and the price, so determined, having very serious possible consequences on the decree-holder's claim or right (Vide the proviso to Section 35). Such determination would doubtless be of a judicial character and not merely administrative in nature and would clearly embrace a decision as to the decree-holder's right, -- and necessarily, therefore, as to the judgment-debtor's liability, -- to have the whole or only a part of the disputed property sold in execution of the decree in Question subject, in effect, to a minimum price. Plainly, therefore, the question involved would be one relating to the execu-|tion of the decree and affecting the rights and liabilities of the parties and requiring judicial de-termination of the same and would thus be one under Section 47 of the Code, making its decision ap-pealable under the law. In this view of the matter, we would have felt little hesitation in overruling the respondent's preliminary objection and holding in favour of the competency of the present appeal.

9. On the merits, however, the appellant has no case and this appeal must fail. There is no dispute that the notice under Order 21, Rule 66, Civil P. C. was duly served on the appellant (Vide Order No. 5, dated May 20, 1950). There is also no dispute that the appellant did not appear on the date fixed in the said notice for the settlement of the proclamation of sale. It further appears that, as far back as July 7, 1950 an application under Section 47 of the Code was filed by one of the judgment-debtors, namely, judgment-debtor No. 14, raising 'inter alia' the question of settlement of the sale proclamation, -- in particular the question of valuation of the disputed properties, --and the same which was registered as Misc. Case No. 63 of 1950 remained pending till about the middle of June 1951. In the meantime, on 5-2-1951, there was another objection filed on the question of valuation by a third party puisne mortgagee which objection was heard in the said Misc. Case No. 63 of 1950. Meanwhile also, the date for settlement of the sale proclamation had been changed from time to time and the sale procla-mation was eventually settled and the question of valuation effectively determined on 19-6-1951, when the Misc. Case No. 63 of 1950 was dismissed. It thus appears that the question of valuation -- and, necessarily, therefore, the question of settlement of the sale proclamation, -- remained open and pending for about a year and, although, during this long period, another judgment-debtor and a third party puisne mortgagee raised an issue on this question of valuation and ultimately remained satisfied with the court's direction in the matter, namely, the insertion of two values in the sale proclamation, Rs. 8,000/- and Rs. 32,000/-, as suggested by the two contending parties, the decree-holder and the then objecting judgment-debtor No. 14, the appellant (judgment-debtor No. 1) did not move at all in spite of service of notice under Order 21, Rule 66 of the Code, and in spite, therefore, of the fullest opportunity to object to the valuation or valuations, put in the sale proclamation, and, indeed, to any term, thereof; and he came in with his objections under Section 47 of the Code, raising, inter alia, the question of Section 35, Bengal Money-Lenders Act, -- which undoubtedly related to the settlement of the sale proclamation (Vide the decision in the case of '50 Cal WN 266 (A)', -- only after the sale proclamation had been issued and only just two days before the day fixed for the sale. There is no explanation why the appellant could not or did not appear and object earlier and in view of this and the circumstances, mentioned before, and the appellant's conduct, as evidenced by the same, we are fully satisfied that the appellant waived his right to object to the terms of the proclamation of sale (including the possible ground, if any, under Section 35, Bengal Money-Lenders Act) and thus lost it by reason of waiver and we are not prepared to disagree with the learned Subordinate Judges in his rejection of the appellant's contention on this point.

10. It has been argued before us that Section 35, Bengal Money-Lenders Act, is a mandatory provision to which the law of waiver does not apply and it has been strenuously contended that, whatever the laches on the part of the judgment-debtor, the court's failure to observe the terms of this statutory provision, whatever the reason therefor, vitiates the entire proceedings and is fatal to its validity. The learned Advocate for the appellant has further argued that, in any event, when the judgment-debtor raises this objection before the actual holding of the sale, the court is bound to give effect to it, if there has been a contravention of Section 35 of the Bengal Money-Lenders Act.

11. In our opinion, the appellant's arguments are misconceived and they really over-step the mark. It is true that Section 35, Bengal Money-Lenders Act casts a duty upon the court but such duty is solely for the benefit -- the private benefit --of the judgment-debtor. It is, therefore, open to him to waive this benefit, or, in other words, to waive his objection of non-observance of that statutory provision by the court (Vide -- 'Ashutosh Sikdar v. Beharilal Kirtania', 35 Cal 61 FB (I), at pages 74 to 77) and, that being the position, we are inclined to hold, in the facts and circumstances of this case, that this objection of the appellant (judgment-debtor No. 1) is clearly barred by waiver. The conduct of the appellant and the circumstances, set out above in sufficient detail, well justify a finding of waiver against the appellant and, indeed, they lead irresistibly to that conclusion. It follows, therefore, that the appellant's objection was rightly overruled by the learned Subordinate Judge.

12. The view we have taken above is fully supported by the decision of this Court, reported in -- 'Maharaj Bahadur Singh v. Sachindra Nath Roy', 1928 Cal 328 (J) (Vide pages 330-331), and also by the observations, made in the csse of -- '50 Cal WN 266 (A)', already cited, at page 270 of the report. Both these cases, it is true, really arose out of proceedings for the setting aside of sale, but, in discussing the effect of service of the notice under Order 21, Rule 66 of the Code and in laying down the law in that behalf, their Lordships did not confine themselves to the after-sale stage but cover-ed wider grounds embracing also the earlier stages leading up to the sale.

13. In the case of -- : AIR1945Cal61 , already cited, the objection under Section 35, Bengal Money-Lenders Act, appears to have been taken in proper time. That case is, therefore, clearly distinguishable from the present and is no authority in the appellant's favour on the merits of his appeal. The case in -- 'Pokhar Singh v. Tula Ram : AIR1935All1016 , which apparently takes a contrary view, is also distinguishable as there the statutory provision under consideration, namely, Section 60, Civil P. C., was of a fundamentally different character, to which the rule of waiver could not apply. That provision was based upon public policy and cast a duty upon the court on such consideration and 'not merely' for the protection or benefit of the individual litigant, or, as it has sometimes been otherwise expressed, for the protection or benefit of a particular person or a particular class of persons in the matter of his or their private rights. Such a statutory provision could not certainly be defeated by waiver, nor, as actually held in the Allahabad case, by the rule of estoppel in view of the well-known principle that there can be 'no estoppel against statutes. The present case involves a statutory provision of a fundamentally different character which, though it casts a duty upon the court, casts such duty not on grounds of public policy but solely for the benefit of the individual litigant, or, to be more particular, solely for the benefit of the judgment-debtor in the matter of his private rights, that is, solely for the judgment-debtor's private benefit, and so the above consideration or theory of public policy excluding waiver has here no application. The other principle cited, namely, that operating against the rule of estoppel, is also not attracted either, as, apart from anything else, there is not, in the present case, strictly speaking, any estoppel in the legal sense of that term, nor, indeed, have we found or proceeded upon any such estoppel. The. Allahabad case is, therefore, clearly distinguishable from the present and the decision therein does not really affect the question, now before us. We need not also, in view of our finding on the question of waiver, examine the Lahore decision ('AIR 1942 Lah 152 (FB) (F)'), where the rule of constructive res judicata was applied to override the maxim 'no estoppel against statutes' in almost similar circumstances.

14. The only other point that was sought to be argued by the appellant was the question of notice under Section 34, Bengal Money-Lenders Act. It was urged by Mr. Dutta that in the present case, there was no notice served under the said section before making the preliminary mortgage decree final. That argument really attacks the validity of the final mortgage decree which is the decree under execution upon the plea of an alleged irregularity or illegality -- involving, it is plain, no question of jurisdiction -- in the making thereof, and it is thus outside the scope of section 47 of the Code of Civil Procedure, being clearly beyond the cognis-ance of an executing court. We are, therefore, unable to entertain or to give effect to this argument in this appeal. It does not appear also that this objection under section 34 of the Bengal Money-Lenders Act was actually pressed in the lower Court and, plainly enough, an issue of fact is primarily involved in this objection. In the premises, having regard to the circumstances of this case, we are not inclined to allow the appellant to raise it before us or to entertain it at this stage. Accordingly, this point of Mr. Dutta must also fail.

15. We have stated above that in the sale proclamation two values were put by the court. In the relevant Order No. 44, dated May 19, 1951, the learned Subordinate Judge gave ample reasons for adopting this course and, as we have already held that no objection under Section 35 of the Bengal Money-Lenders Act was permissible or entertainable in the present case, the sale proclamation which was otherwise quite in order cannot be attacked on the ground of insertion, therein of two valuations of the disputed property -- one given by the decree holder and the other coming from the side of the contesting judgment-debtor, -- such a course being clearly warranted by the new proviso added by this Court to Order 21, Rule 66(2) of the Code of Civil Procedure and being also fully covered by its earlier decisions, reported in -- 'Bejoy Singh Dadhuria v. Ashutosh Gossain' : AIR1924Cal589 ; --'Basanta Kumar v. Sylhet Loan Co., Ltd.' : AIR1932Cal576 ; -- 'Debendra Nath v. Radha Kissen' : AIR1931Cal520 and -- 'Ban Behari v. Bauk-han Lal' : AIR1933Cal511 .

16. In the result, therefore, all the points urged in support of this appeal fail and, accordingly, the appeal is dismissed with costs.

Guha Ray, J.

17. I agree.


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