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Basanta Kumar Choudhury and anr. Vs. Rai Baikunta Nath Chakravarty Bahadur - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported inAIR1926Cal610,91Ind.Cas.819
AppellantBasanta Kumar Choudhury and anr.
RespondentRai Baikunta Nath Chakravarty Bahadur
Cases ReferredDevendra Nath Basu v. Kailash Chandra Kalu
Excerpt:
civil procedure code (act v of 1908), section 47, order xxi, rule 66 - execution of decree--sale proclamation--duty of executing court--particulars with regard to property to be sold, necessity of--dispute as to valuation--valuation suggested by judgment-debtor, whether may be entered in sate proclamation--order settling terms of sale proclamation--appeal, whether lies. - .....and not 59129-1. there were other objections also which need not be specially set forth here. the learned judge dealt with all these objections in his order passed on the 25th march 1925 and, against this order, the present appeal has been preferred.2. the learned judge held that the executing court was not competent to go behind the decree and, therefore, the objection of the judgment-debtors should be overruled. so far as the valuation of the properties was concerned, he was of opinion that a previous decision passed by the court operated as res judicata. in dealing with these objections of the judgment-debtors, the learned judge, it seems to me, did not properly take into account the nature and weight of the objections. it appears that, at a previous stage of the execution.....
Judgment:

Mukerji, J.

1. This appeal is preferred by the judgment-debtors and it arises out of an order which, purports to has been made under the provisions of Order XXI, Rule 66, C.P.C. the execution proceeding in connection with which, the order in question has been passed relate to a mortgage decree. The judgment-debtors put in an objection on the 21st March 1925 dealing with various matters. One of those objections was to the effect that the Cadastral Survey Dags should have been inserted in the description of the properties mentioned in the application for execution. Another objection was that the values of the properties had been understated in the application for execution. A third objection related to one of the plots mentioned is the decree, namely, plot No. 11 it being stated that, so fax as that plot was concerned, the mortgage was only in respect of an eight-annas share and not in respect of the entire sixteen-annas. There was also an objection relating to the number of the taluq as given in the application in respect of plot No. 1 of the mortgaged properties, it being stated that the correct number was 58129 and not 59129-1. There were other objections also which need not be specially set forth here. The learned Judge dealt with all these objections in his order passed on the 25th March 1925 and, against this order, the present appeal has been preferred.

2. The learned Judge held that the Executing Court was not competent to go behind the decree and, therefore, the objection of the judgment-debtors should be overruled. So far as the valuation of the properties was concerned, he was of opinion that a previous decision passed by the Court operated as res judicata. In dealing with these objections of the judgment-debtors, the learned Judge, it seems to me, did not properly take into account the nature and weight of the objections. It appears that, at a previous stage of the execution proceedings by an order passed on the 13th September 1924, the learned Judge fixed the value of the properties at certain figures and, by a further order passed on the 20th November, 1924, he directed the decree-holder to put in the Cadastral Survey Dags in the description of the mortgaged properties given in the sale proclamation, and, on the failure of the decree-holder to comply with this latter order, he on the 3rd December 1924 ordered the execution proceedings to be dismissed for default. With regard to some of the objections taken on behalf of the judgment-debtors, it is true that they are objections which cannot properly be taken before the Executing Court; for the Executing Court is bound to execute the decree as it is and cannot go behind it. But it is always open to the Executing Court to take care that the correct description of the properties and everything which is material for the purchaser to know in order to judge of the nature and values, of the properties are given in the sale proclamation. I am not satisfied at all that the matter has been properly dealt with by the learned Judge in this case. I am of opinion that the order passed by the learned Judge on the 25th March 1925 should be set aside and the case sent back to him for re-consideration. He will, in the first instance, obtain from the judgment-debtors the Cadastral Survey numbers of the properties which are to be sold and for this purpose he should give them 8 reasonable opportunity. On the judgment-debtors supplying the dag numbers to the Court, the learned Judge will verify them as far as practicable and have those numbers inserted in the sale proclamation. Or the question of valuation having regard to the fact that no appeal has been taker from the order dated 13th September 1924 and the wide difference between the values given by the two parties it seems to be one of those exceptional cases in which, the valuation as given by the judgment-debtors should also be inserted in the sale proclamation. The learned Judge will also deal with the other objections which have been taken on behalf of the judgment-debtors in these proceedings and to which I have already referred and after dealing with all these matters, he will pass such orders as may appear to hint fit and proper in the circumstances of the case.

3. As regards the preliminary objection taken on behalf of the respondent to the hearing of this appeal, it is true that an order merely fixing the value of a property under Order XXI, Rule 66, C.P.C. is not one as such open to appeal. But as has been held by this Court in the case of Devendra Nath Basu v. Kailash Chandra Kalu 80 Ind. Cas. 861 : 29 C.W.N. 556 : (1925) A.I.R. (C.) 318, an order under Order XXI, Rule 66 may in certain circumstances also amount to an order under Section 47 of the Code; and, in my opinion, the order against which the present appeal has been preferred is one which may very well be treated as having been passed also under the provisions of Section 47, C.P.C. The appeal, therefore, in my opinion, is maintainable.

4. The result, therefore, is that the appeal is allowed, the order of the Subordinate Judge dated the 25th March. 1925 is set aside and the case sent back to him to be dealt with in the light of the observations made above. No order is made as to costs.

Walmsley, J.

5. I agree.


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