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Ban Behari Chatterji and ors. Vs. Bhukhan Lal Choudhury - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1933Cal511
AppellantBan Behari Chatterji and ors.
RespondentBhukhan Lal Choudhury
Cases ReferredLachiram v. Rameshwar Singh
Excerpt:
- .....i.e., where the court merely includes in the last column of the proclamation the fact that a values the property at rs....and b values it at rs. ... these figures might well be of themselves 'things considered by the court material for the purchaser to know in order to judge of the nature and value of the property.' where however the court purports to insert a value as the court value, but for this purpose instead of making its own inquiry, inserts the parties' figures, again the authorities are agreed that (apart from exceptional circumstances) this would be a material irregularity: surendra v. harekchand (1908) 12 cwn 542; bejoy v. ashutosh : air1924cal589 ; debendra v. radha kissen : air1931cal520 ; pashupati v. bank of behar : air1932cal141 and lachiram v. rameshwar singh :.....
Judgment:

1. This is an application under Section 115, Civil P.C. We are asked to revise an order of the Subordinate Judge of the 24-Parganas, passed on 5th September 1932, whereby in a matter under Order 21, Rule 66, Civil P.C., he directed that the sale proclamation should show the value put upon the property to be sold as given by the decree-holder, as also that given by the judgment-debtor. In this case the discrepancy between the two values, though not so large as in some of the decided cases, is yet considerable, viz., Rs. 40,000 as against Rs. 1,00,000. The application for revision and for stay of sale has, as usual, been made at the last minute. There is a conflict of evidence as to what took place before the learned Subordinate Judge. It is possible that at that stage the judgment-debtor did not press the point argued before us. We do not however, propose to discuss the merits or bona fides of the application since we think it desirable to give a decision on the point of principle involved.

2. The relevant enactment of the Code, viz., Order 21, Rule 66(2)(e), with which may be read, Form 29, App. E, does not in terms cast upon the Court the duty of making any valuation of the property to be sold. The provision in question however chiefly as a result of a decision of the Privy Council in 1898, Saadathmund Khan v. Phool Coomar (1898) 20 All 412, became entrusted with a mass of judicial authority. In one volume of the reports alone 35 C, W.N. are to be found three reported cases. We appreciate that it is not easy from the decisions referred to, to arrive at a definite result, and that for this reason the Court, in dealing with matters under Order 21, Rule 66, finds some difficulty in knowing the extent of its duties. We propose as concisely as possible to give our view of the general effect of the cases: (1) Following Saadathmund Khan v. Phool Coomar (1898) 20 All 412, all agreed that if the Court includes its valuation in the sale proclamation, 'the value being a material fact must be fairly and accurately stated.' (2) The authorities however, do not agree that it is the duty of the Court in all cases, or even in a normal case, to make a valuation. As pointed out in subsequent cases, in particular Lachman Prasad v. Ganga Prasad (1910) 6 IC 180; Daulat Bhaiya v. Rahisa Banu : AIR1931Cal490 and Saadathmund Khan's case (1898) 20 All 412, does not lay down the proposition that the Court must do so. Sir John Woodroffe in Surendra Mohan v. Harak Chand (1908) 12 CWN 542, left this question open. In Lachman v. Ganga (1910) 6 IC 180, valuation is treated as a duty of the Court. In Bejoy Singh v. Ashutosh Gossain : AIR1924Cal589 , valuation by the Court is treated as desirable. The same in Debendra Nath v. Radha Kissen : AIR1931Cal520 . On the other hand in Daulat Bhaiya v. Rahisa Banu : AIR1931Cal490 , it is treated as a matter within the discretion of the Judge. In Lachiram v. Rameshwar Singh : AIR1930Cal781 , Suhrawardy and Graham, JJ., again treated valuation as a duty of the Court but in a later case, Pashupati Nath v. Bank of Behar : AIR1932Cal141 , the same Judges having regard to the earlier cases of the same year, left the question open. The matter is not carried any further by the decision of Costello, J., in Basanta Kumar v. Sylhet Loan Co., Ltd. : AIR1932Cal576 . The difficulty which we feel in this state of the authorities on this point is as follows:

3. Unless it is definitely laid down that it is the duty of the Court (apart from exceptional circumstances) to make its own valuation, it is difficult to decide that the Court if guilty of a material irregularity in inserting the values given respectively by the parties, i.e., where the Court merely includes in the last column of the proclamation the fact that A values the property at Rs....and B values it at Rs. ... These figures might well be of themselves 'things considered by the Court material for the purchaser to know in order to judge of the nature and value of the property.' Where however the Court purports to insert a value as the Court value, but for this purpose instead of making its own inquiry, inserts the parties' figures, again the authorities are agreed that (apart from exceptional circumstances) this would be a material irregularity: Surendra v. Harekchand (1908) 12 CWN 542; Bejoy v. Ashutosh : AIR1924Cal589 ; Debendra v. Radha Kissen : AIR1931Cal520 ; Pashupati v. Bank of Behar : AIR1932Cal141 and Lachiram v. Rameshwar Singh : AIR1930Cal781 . Where in any of the above cases the course taken by the Judge has been upheld, the Court on appeal found that the circumstances of the case were exceptional: see Bejoy v. Ashutosh : AIR1924Cal589 and Debendra v. Radha Kissen : AIR1931Cal520 .

4. In the present case we think that the figures given by the parties were inserted as and by way of Court valuation. There is nothing to show that the case is exceptional in the sense that independent valuation by the Court is impossible, and therefore on the view taken by us of the authorities, we feel bound to set aside the order. We appreciate the doubt felt by the Judges who have decided many of the above oases, whether the Code originally contemplated putting the burden of valuation upon the Court; but in view of the fact that this Court has consistently held such valuation to be desirable, and in view of the difficulty above indicated unless the matter is carried to its logical conclusion we propose to express our view on this point. Following the decision in Lachiram v. Rameshwar Singh : AIR1930Cal781 , we consider: (i) that it is the duty of the Court (apart from exceptional circumstances) to make a valuation the result of which is to be included in the sale proclamation; (ii) such duty (save in exceptional circumstances) is not discharged by merely stating the values respectively put upon the property by the parties. The Court should make its own inquiry and arrive at a single figure, (iii) If by reason of exceptional circumstances the course indicated in (i) and (ii) is found to be impracticable, such circumstances should be clearly set out in the order.

5. For the reasons indicated above rule is made absolute and the Subordinate Judge is directed to assess the value of the attached property after holding such inquiry as the circumstances of the case may require and to issue a fresh sale proclamation in due course. In view of the long delay that has already occurred in bringing the attached property to sale and in view of the allegation made on behalf of the decree-holder that the attached property is likely to depreciate in value in the event of any further delay, we direct that the valuation be made with the utmost expedition and we may add that in our opinion it should be possible for the necessary inquiry to be completed within one month. Both parties will bear their own costs in this Court.


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