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Sm. Premwati And Others Judgment-Debtors v. Sm. Satayawati Jain And Others Decree-Holders
Judgment Summary — Kaul, J.
Factual and Procedural Background
Shrimati Satayawati Jain and others obtained a final decree for sale in a mortgage suit against Shrimati Premwati (the judgment-debtor) on 29-10-1949. The decree-holders applied for execution on 16-2-1950. Notices fixing the date for settlement of particulars of the sale proclamation were issued on 7-2-1952; due to the death of King George VI the Courts were closed on that date and matters were taken up the next day.
On 8-2-1952 the judgment-debtor filed objections, including a complaint that the decree-holder had not filed a written statement required for settlement of the sale proclamation particulars. The trial Court ordered registration of that application as a miscellaneous case under Section 47 CPC and to be put up the next day. When taken up the objector was absent and the objections were dismissed for default. The main execution was also taken up; the Court directed preparation of the sale proclamation and, on 11-2-1952, ordered issuance of a warrant for auction on 26-3-1952. The decree-holders asserted the property was worth Rs. 70,000.
On 8-3-1952 the judgment-debtor made another application seeking to set aside the ex parte order passed on 9-2-1952, to amend particulars of the sale proclamation and to stay the sale. The Civil Judge dismissed that application. The judgment-debtor (Premwati) appealed (Execution First Appeal No. 109 of 1952) and filed a civil revision (No. 713 of 1952); Mr. Varma appeared for the judgment-debtor and said the revision was filed "by way of abundant caution."
Legal Issues Presented
- Whether an appeal lies against an order made under Order XXI, Rule 66 of the Civil Procedure Code (i.e., an order directing the mode of the sale proclamation and fixing an approximate value) — specifically whether such an order is a "judicial adjudication" and thereby appealable as a decree under Section 47 CPC.
- Whether a revision under Section 115 CPC is entertainable against such an order (i.e., whether the order can be revised on grounds such as want or excess of jurisdiction or material irregularity).
- Whether the High Court should exercise its supervisory jurisdiction under Article 227 of the Constitution of India in the circumstances of this case (as a residual remedy where other statutory remedies may be available).
Arguments of the Parties
Appellant's / Judgment-Debtor's Arguments (as presented in the opinion)
- Mr. Varma (for the judgment-debtor) contested a preliminary objection that no appeal lay; he sought to distinguish the Federal Court decision in Shyamahant Lal v. Bambhajan Singh by contending that the relevant observations were obiter and not concurred in by the other two Judges of that Bench.
- Mr. Varma relied on decisions from the Patna High Court (Sri Kant Lall v. Ram Bhajan Singh; Raghunath Singh v. Hazari Sahu; William Haling Grant v. Suraj Mal Manvari) and on the Privy Council decision in Saadatmand Khan v. Phul Kuar to support his contention that the order impugned should be examinable by higher remedial proceedings.
- As a last resort Mr. Varma invoked Article 227 of the Constitution (power of superintendence of the High Court), although he conceded that if injury arose from a defective sale proclamation the remedy under Order XXI, Rule 90 (to set aside a sale) would remain available after the sale.
Respondents' / Decree-Holders' Arguments (as presented in the opinion)
- Dr. Asthana (appearing for the respondents) raised a preliminary objection, relying on the Federal Court decision Shyamahant Lal v. Bambhajan Singh, that an order under Order XXI, Rule 66 is not a judicial adjudication of rights between decree-holder and judgment-debtor and therefore no appeal lies under Section 47 CPC.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Shyamahant Lal v. Bambhajan Singh, A.I.R. 1939 F.C. 74 | Held that an order under O.21, R.66 CPC is not a judicial adjudication between parties to execution but directions as to mode of proclamation; approximate estimation of value is not a determination within Section 47 CPC. | The Court accepted this authority as decisive on the preliminary objection and relied on Sulaiman J.'s view that such orders are not appealable; it rejected the attempt to treat those observations as merely obiter. |
| Ajodhia Prasad v. Gopi Nath, 39 All. 415 | Cited by Sulaiman J. in support of the proposition that valuation for sale proclamation is not a decree under Section 47. | The Court noted this case among several of its own earlier decisions that support the conclusion that orders fixing valuation under O.21, R.66 are not appealable as decrees. |
| Hira Lal…Decree-Holder v. Tikam Singh…Objector, A.I.R. 1926 All. 401 | One of the decisions cited in support of the non-adjudicatory character of O.21, R.66 proceedings. | Used as part of the body of authority confirming that fixing valuation for sale proclamation is not an adjudication within Section 47. |
| Mahomed Zaharia v. Kishun Narain, A.I.R. 1926 All. 268 | Cited as authority in the line of cases indicating the non-decisional character of valuation orders under O.21, R.66. | Counted among the decisions supporting the conclusion that such an order is not appealable. |
| Qaiser Beg v. Sheo Shankar Das, A.I.R. 1932 All. 85 | Part of authorities cited by Sulaiman J. on the nature of valuation orders for sale proclamation. | Relied on as supporting precedent to show the question is concluded by authority. |
| Nathu Lal v. Yashodha Devi, A.I.R. 1932 All. 136 | Another decision of the same High Court cited in the federal-court reasoning. | Included among the authorities showing that an order fixing valuation is not a decree under Section 47. |
| Ram Charan v. Jumna Prasad, A.I.R. 1932 All. 696 | Held that an order fixing valuation for purposes of sale proclamation was not a decree within Section 47. | Specifically relied on by Sulaiman J.; the Court treated this as supporting authority and concluded the question to be settled by precedent. |
| Saadatmand Khan v. Phul Kuar, 25 Ind. App. 146 (P.C.) | Held that a material misrepresentation of value in a proclamation (under old S.311) is a material irregularity enabling setting aside of a sale. | The Court observed this decision shows misstatements of value can be challenged under the present O.21, R.90 (corresponding to old S.311), but it does not support the proposition that an order directing the amount to be mentioned in the proclamation is a judicial adjudication under Section 47. |
| Raghunath Singh v. Hazari Sahu, A.I.R. 1917 Pat. 381 (Full Bench) | Stated the duty of the Court in a proclamation to state fairly and accurately the value of the property; the Full Bench did not decide whether revision under Section 115 could be entertained in such circumstances. | The Court held this case did not directly determine the present question and noted that the Full Bench had proceeded under other statutory powers for the matters it considered. |
| Sri Kant Lall v. Ram Bhajan Singh, A.I.R. 1940 Pat. 422 | Case of the Patna High Court cited by the appellant. | The Court found the facts in that case were different and therefore not helpful to the appellant's contention. |
| William Haling Grant v. Suraj Mal Manvari, A.I.R. 1923 Pat. (as cited in the opinion) | The opinion in that case did not raise the question as to terms on which sale proclamation should be settled; it dealt with a different question. | The Court concluded this case did not assist the appellant because the specific issue now before the Court did not arise there. |
Court's Reasoning and Analysis
The Court first considered the preliminary objection that no appeal lay from the order impugned. It accepted and followed the reasoning of Sulaiman J. in the Federal Court decision (Shyamahant Lal v. Bambhajan Singh) that an order made under Order XXI, Rule 66 of the CPC — fixing an approximate valuation and directing the mode of the sale proclamation — is not a judicial adjudication of any question arising between decree-holder and judgment-debtor within the meaning of Section 47 CPC, but merely the issuing of directions as to the mode of proclamation of sale.
The Court examined the contention that Sulaiman J.'s remarks were obiter because the other two Judges of that Bench (Gwyer C.J. and Varadachariar J.) did not agree with his view on appealability. The Court rejected that contention: it observed that the other Judges did not dissent from Sulaiman J.'s characterisation of O.21, R.66 proceedings as to their legal nature; rather, they took the view that additional statutory provisions in that case (ss. 16 and 17 of the Bihar Money-lenders' Act) gave rights requiring consideration, i.e., their disagreement related to the scope of the particular case not to the general legal character of O.21, R.66 proceedings. Thus Sulaiman J.'s observations on the true nature of proceedings under O.21, R.66 were not to be treated as obiter and, in the Court's view, that line of authority concluded the question of appealability.
The Court reviewed a number of decisions (from its own jurisdiction and other High Courts) cited in support of the same principle, and concluded that the authority was consistent that fixing valuation under O.21, R.66 is not an adjudication under Section 47.
The appellant's reliance on Patna High Court decisions and the Privy Council was examined. The Court held that those authorities did not directly decide the issue now before it. In particular, the Privy Council decision (Saadatmand Khan v. Phul Kuar) was recognised to establish that a material misrepresentation of value in a sale proclamation can be a material irregularity warranting setting aside a sale under the old Section 311 (now corresponding to O.21, R.90). The Court accepted that such an irregularity can still be challenged under O.21, R.90, but said that this does not convert an order fixing valuation for the proclamation into a judicial adjudication subject to appeal as a decree.
Turning to revision under Section 115 CPC, the Court followed the same reasoning: because determination of the value to be inserted in the sale proclamation is not a judicial adjudication of rights between the parties but directions as to mode of proclamation, there is no question of the Court exercising a jurisdiction it did not possess, or refusing to exercise jurisdiction properly vested in it, or exercising jurisdiction with material irregularity in such a way as to invite revision under Section 115. Therefore, revision under Section 115 could not be entertained.
Lastly, the Court considered Article 227 (superintendence). The Court noted the applicant's concession that if any injury results from a defective sale proclamation he could seek relief after the sale under O.21, R.90. The Court stated that if a remedy is available under another provision of law, it would not exercise the residuary supervisory jurisdiction under Article 227 to grant such relief. On that basis the Article 227 contention did not alter the outcome.
Holding and Implications
Holding: The Court dismissed both the appeal and the revision application.
Implications and immediate consequences:
- The Court held that no appeal lies against the order made under Order XXI, Rule 66 CPC fixing the approximate value for a sale proclamation; such an order is not a judicial adjudication within Section 47 CPC.
- The Court held that revision under Section 115 CPC is not entertainable against such an order because no question of excess or want of jurisdiction or material irregularity (in the sense required for revision) arises from the act of fixing or directing the valuation for the proclamation.
- The Court declined to exercise Article 227 superintendence where an alternative statutory remedy (in particular, challenging a defective sale under O.21, R.90) remains available after the sale.
- Costs: The respondents were awarded their costs of the appeal; no order as to costs was made in respect of the revision application.
- No broader change of law was stated; the decision applies the existing line of authority that valuation orders for sale proclamations under O.21, R.66 are not appealable as decrees and are not ordinarily amenable to revision under Section 115.
Disposition: Appeal and revision dismissed.
Kaul, J.:— Both the above cases relate to the same order passed by the learned Civil Judge, Kanpur, and may conveniently be disposed of by one common judgment.
2. The material facts the within a short compass. Shrimati Satayawati Jain along with some other persons obtained a decree against Shrimati Premwati, who is the appellant in Execution First Appeal No. 109 of 1952 and the applicant in civil Revision no. 713 of 1952, on 29-10-1949. It was a final decree for sale in a mortgage suit. An application for execution was made by the decree-holders on 16-2-1950. Notices fixing the date for settlement of the particulars of the sale proclamation was issued on 7-2-1952. Owing to the death of His Majesty King George VI the Courts were closed on that date and the cases fixed for that date were taken up the next day. On 8-2-1952, the judgment-debtor filed objections mentioning a number of grounds against the execution of the decree. It was complained by her that inasmuch the decree-holder had not filed a written statement as was required by law for settlement of the particulars of the sale proclamation, she was unable to file a proper objection. It was ordered that the application be registered as a miscellaneous case under Section 47 of the CPC, and be put up the next day. When the case was taken up, the objector was absent and the objections were dismissed for default. The main execution case was also taken up the same day and an order directing that a sale proclamation be prepared in accordance with the directions given was made. The sale proclamation was prepared accordingly and on 11-2-1952, it was ordered that a warrant be issued for holding an auction sale of the property on 26-3-1952. It may be mentioned that according to the decree-holders, the property sought to be sold was worth Rs. 70,000. On 8-3-1952, the judgment-debtor made another application praying that the ex parte order passed against her on 9-2-1952, be set aside, the particulars of the sale proclamation be amended and the sale be stayed meanwhile. It was held by the learned Civil Judge that an application for setting aside an order like the one passed by him on 9-2-1952, did not the and the application was dismissed. Dissatisfied with this order, the present appeal and the revision application have been filed. Mr. Varma, who appeared for the judgment-debtor, stated that he had filed his revision application by way of abundant caution.
3. A preliminary objection was raised by Dr. Asthana to the hearing of this appeal. Relying on the observations of Sulaiman J. in Shyamahant Lal v. Bambhajan Singh, A.I.R 1939 F.C 74 at p. 80, Dr. Asthana contended that no appeal lay in the present case. This was contested by Mr. Varma. Having considered the matter carefully, we have come to the conclusion that the preliminary objection should prevail. It was laid down in the Federal Court case, to which reference has just been made that an order under O. 21, R. 66 of the CPC is not a judicial adjudication of any question arising between the parties to the execution but merely the issuing of directions as to the mode of proclamation of sale. Sulaiman J. further observed:
“It is really difficult to see how the approximate estimation of the value of the property can ever be regarded as a determination of any question arising between the decree-holder and the judgment-debtor within the meaning of Section 47 of the CPC”
4. He further added:
“There seems to be a perfect unanimity among all the Indian High Courts that the fixing of the value of the property under this rule (O. 21, R. 66) is by no means an adjudication within the meaning of Section 47 of the CPC and such an order is not appealable as a decree.”
5. He cited a large number of authorities including several cases of our own Court in support of the view taken by him. Mr. Varma sought to distinguish this case by saying that the observations were obiter and that they were not concurred in by the other two Judges constituting the Bench. Specific reference was made by him to the observations of Gwyer C.J and Varadacbariar J. at p. 77. He particularly invited our attention to the following passages:
“Our brother Sulaiman, though otherwise in agreement with us, holds that no appeal lies to this Court in the present case. We are unable to concur in that opinion. We think that the order of the High Court in this case must be treated as a final order for the purposes of Section 205 of the Constitution Act. If the appellant's application related only to the settlement of the proclamation, it is true that an order dealing with that application could not be regarded as determining the rights of the parties in any measure so as to make it a final order. A question of this land must be determined with reference to the substance of the dispute between the parties and not merely in the light of the fact that the application is one made to the Court before whom an application to execute a decree is pending.”
6. We are unable to hold that the observation made by Sulaiman J., was obiter. It is true that the two other learned Judges composing the Bench did not agree with him that the question before the Court in that case was one entirely governed by the provisions of O. 21, R. 66 of the CPC. They pointed out that ss. 16 and 17, Bihar Money-lenders' Act, gave certain valuable rights to judgment-debtor whose case was covered by those sections. That would not, however, be sufficient ground to hold that the observations made by Sulaiman J., with regard to the correct nature of a proceeding under O. 21, R. 66 of the CPC, were obiter. This is clear from the observations made by Gwyer, C.J, and Varadachariar, J., at pages 77 and 78. They were of opinion that though O. 21, R. 66 of the CPC, was relevant to the case before them and did require consideration but according to their view certain other provisions of the law were also not to be lost sight of. In this view of the matter Mr. Vanna's contention that the observations made by Sulaiman J., were obiter cannot be accepted.
7. It will be further noted that the observations made by Sulaiman J., on the true character of the proceedings under O. 21, R. 66 of the CPC, were concurred in by the other two learned Judges composing the Bench. They dissented from him not on that point but were of opinion that the matter before them was not covered solely by the provisions of O. 21, R. 66 of the CPC. There were a large number of authorities to which reference was made by Sulaiman J., in support of his view including the following cases of our own Court viz., Ajodhia Prasad v. Gopi Nath, 39 All. 415; Hira Lal…Decree-Holder v. Tikam Singh…Objector ., A.I.R 1926 All. 401; Mahomed Zaharia v. Kishun Narain, A.I.R 1926 All. 268; Qaiser Beg v. Sheo Shankar Das, A.I.R 1932 All. 85 and Nathu Lal v. Yashodha Devi, (A.I.R 1932 All. 136) and Ram Charan v. Jumna Prasad, A.I.R 1932 All. 696 (1) reported in the same volume at pp. 136 and 696. Referring to the last case, he pointed out that it was held in that case that an order fixing the valuation for the purposes of the sale proclamation was not a decree within the meaning of Section 47 of the CPC. Then he referred to decisions of other High Courts but we do not consider it necessary for the purposes of the present case to mention them here. In this view of the matter the question seems to be concluded by authority.
8. Mr. Varma, however, invited our attention to three cases of the Patna High Court, viz. Sri Kant Lall v. Ram Bhajan Singh, A.I.R 1940 Pat. 422, Raghunath Singh v. Hazari Sahu, A.I.R 1917 Pat. 381 (F.B) and William Haling Grant v. Suraj Mal Manvari, A.I.R 1923 Pat. 134, and to a decision of their Lordships of the Privy Council in Saadatmand Khan v. Phul Kuar, 25 Ind. App. 146 (P.C). We are clear that in none of these cases the question which arises before us came up for consideration directly. In Saadatmand Khan v. Phul Kuar, 25 Ind. App. 146 (P.C), it was held that
“a material misrepresentation (though made gratuitously by the decree-holder and the Court) of the value of property contained in a proclamation of sale under Section 287 of the CPC, is a material irregularity in publishing or conducting a sale in execution within the special remedy provided by S. 311 for setting such sale aside.”
9. It will be noted that the old Section 311 of the Code of 1882, corresponded to our O. 21, R. 90 of the present CPC, 1908, and the finding of the Court arrived at in that case that the misstatement of the value of the property in that case could hardly have been made in good faith. Clearly such a matter could be agitated even now under O. 21, R. 90 of the CPC. This case can be no authority for the proposition that an order directing that a certain amount be mentioned in the sale proclamation as the approximate value of the property sought to be sold is a judicial adjudication of any question arising between the parties to the execution. In Raghunath Singh v. Hazari Sahu, A.I.R 1917 Pat. 381, a Full Bench of the Patna High Court held that:
“It is the duty of a Court in preparing a proclamation of sale to state as fairly and accurately as possible in the proclamation the value of the property.”
10. But Chamier C.J with whom Sharfuddin and Atkinson JJ. agreed expressly made it clear that it was not necessary for him for the purposes of that case to consider the question whether a revision under Section 115 of the CPC could be entertained in such circumstances. The revision application was, therefore, entertained under the provisions of Section 107 of the Government of India Act. As we know, that section was also altered subsequently, and under the corresponding provision in the Government of India Act, 1935, no such power as was exercised under Section 107 of the earlier Government of India Act could be exercised. Nor do the third Patna case referred to can be of any help to Mr. Yarma's client. The question which now arises before us did not arise in that case. It was observed by Das J. who pronounced the judgment in William Haling Grant v. Suraj Mal, A.I.R 1923 Pat. 184, that in the case before them the application of the judgment-debtors did not raise any question as to the terms on which the sale proclamation should be settled. It raised a different question altogether.
11. The facts in Sri Kant Lall v. Ram Bhajan Singh, A.I.R 1940 Pat. 422, were different from the facts of the case before us.
12. For the reasons given above, we are clear that no appeal lies in the present case.
13. We will next consider whether the revision application under Section 115 of the CPC is entertain-able. We have followed the view expressed by Sulaiman J. in the Federal Court case to which reference has been made earlier in this order. According to him, the determination of the value to be inserted in the sale proclamation in a proceeding relating to the execution of decree is not a judicial adjudication of any question arising between the parties to the execution, but merely the issuing of directions as to the mode of proclamation for sale. Clearly, therefore, no question of exercise of any jurisdiction which did not vest in the Court or refusal to exercise jurisdiction properly vested in it, or exercise of its jurisdiction with material irregularity can arise in such a case. Accordingly no revision under Section 115 of the CPC, can be entertained.
14. Mr. Varma as a last resort fell back upon the provisions of Article 227, Constitution of India, which gives the High Court a power of superintendence over all Courts and tribunals in this State. It was frankly conceded by the learned counsel for the applicant that if any injury is caused to the interests of his client by “the defective” sale proclamation which has been issued, he will be entitled to seek relief after the sale has been held under O. 21, R. 90 of the CPC. If any relief in respect of an injury can be claimed by another provision of the law, this Court would not exercise its jurisdiction under Article 227 of the Constitution, to grant such relief. This disposes of all the points raised by Mr. Varma. We, therefore, dismiss the appeal as well as the revision application. The respondents shall get their costs of the appeal. No order is made as to costs in the revision application.
A/K.S
15. Appeal and revision dismissed.
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