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Lakhpati Koer and anr. Vs. Harkho Singh and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in3Ind.Cas.342
AppellantLakhpati Koer and anr.
RespondentHarkho Singh and ors.
Cases ReferredGanga Prosad v. Raj Coomar Singh
Excerpt:
appeal - order settling valuation to be published in sale proclamation--administrative order not judicial-civil procedure code (act v of 1908), sections 2(2), 47, 104, order xxi, rule 66, order xliii, rule 1. - .....with the decision of the lower court.2. an important point has been raised before us that no appeal lies in this case. it is admitted that no appeal lies under section 104 or order xliii, rule 1, civil procedure code, but the question is whether the orders appealed from constitute the determination of any question within' section 47, for if they do they constitute a decree' under section 2(2) and an appeal lies. the relevant sections of the new code seem to be the same as those of the old code for present purposes, and accordingly former decisions apply as though the old code were still in force. the decision in rajah ramessur proshad narain singh v. rai sham krissen 8 c.w.n. 257 is therefore an authority for saying that an order refusing a stay of proceedings and the issue of a.....
Judgment:

1. This is an appeal from two orders of the third-Subordinate Judge of Patna made in execution proceedings for the realization of a mortgage-decree by sale of the mortgaged properties, settling the valuation to be published in the sale proclamation of the properties to be sold. On objection made by the judgment-debtor, he enquired into the matter. The materials he had before him included certain Road Cess Valuations and some oral evidence produced by the judgment-debtor. On considering these, we see no reason for disagreeing with the conclusions at which he has arrived. In several cases the Road Cess papers may be taken as showing a difference from the values assessed sometimes one way sometimes the other, but they afford weak ground for any exact calculations and the difference between the results allowed or arrived at by the lower Court and those suggested to us on behalf of the appellant do not make out any good cause for appeal. The most important oral evidence taken by the Judge consists of statements as to the jamabandis of various lots, in which we cannot find any thing to afford ground for interfering with the decision of the lower Court.

2. An important point has been raised before us that no appeal lies in this case. It is admitted that no appeal lies under Section 104 or Order XLIII, Rule 1, Civil Procedure Code, but the question is whether the orders appealed from constitute the determination of any question within' Section 47, for if they do they constitute a decree' under Section 2(2) and an appeal lies. The relevant sections of the new Code seem to be the same as those of the old Code for present purposes, and accordingly former decisions apply as though the old Code were still in force. The decision in Rajah Ramessur Proshad Narain Singh v. Rai Sham Krissen 8 C.W.N. 257 is therefore an authority for saying that an order refusing a stay of proceedings and the issue of a new sale proclamation is a decree under Section 2. The same view was taken in Saurendra Mohan Tagorv v. Hurrule Chand 12 C.W.N. 542 though there the question whether an appeal lay was not specifically raised. In Ganga Prosad v. Raj Coomar Singh 30 C. 617 however, it was held that an order disallowing an objection based on inadequacy of valuation in the sale proclamation was an order between the parties under Section 244 of the old Code and was, therefore, appealable. These decisions all seem to be founded on one view, and if a refusal to allow on objection to a valuation is an order determining a question arising between the parties to the suit and relating to the execution of the decree,-the words are the same in the old Code and the new-it is difficult to see why an order as to the valuation is not the same. But the case of Rajah Ramessur Proshad Narain Singh v. Rai Sham Krissen 8 C.W.N. 257 was decided on the authority of Sivasami Naickar v. Ratnasami Naichar 23 M. 568 and that case has been overruled in Sivagami Achi v. Subrahmania Ayya. 27 M. 259 (F.B.) where the decision in Ganga Prosad v. Raj Coomar Singh 30 C. 617 was dissented from on the ground that proceedings under Section 287 (cf. Order XXI, Rule 66) were of an administrative and not of a judicial character. That decision seems to cover the present case, and though one of the reasons by which it may be supported, namely the protection given by Section 288 to the Judge from liability for errors &c.; in the valuation, is now removed, owing to the contents of that section being omitted from the new Code, we have doubts as to the correctness of the decisions of this Court, that we have noticed. Had the appellants' case any merits, we might, therefore, consider it our duty to refer the question, whether an appeal lies, to a Full Bench. As the case stands on the merits, however, this is unnecessary, and the appeal is dismissed with. costs, 5 gold mohurs.

3. Let the record be sent down at once.


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