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  • Hon'ble Sir Cecil Henry Walsh
  • Hon'ble Mr. Theodore Caro Pigott
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Judges
  • Hon'ble Sir Cecil Henry Walsh
  • Hon'ble Mr. Theodore Caro Pigott
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Smart Summary

Structured Summary of the Opinion (Piggott, J. and Walsh, J.)

Factual and Procedural Background

This is an appeal by a judgment-debtor in an execution proceeding. A decree under Order 34, Rule 5 of the Civil Procedure Code (CPC) was passed for the sale of certain mortgaged property. Notice was issued to the parties fixing 6 October as the date for an enquiry under Order 21, Rule 66 CPC to enable the Court to draw up a sale proclamation.

On 6 October the judgment-debtor filed a "petition of objection." The most substantial relief sought by the judgment-debtor on that petition was a postponement of the execution proceedings until his application for review of the decree was disposed of; that review application ultimately failed. In addition to seeking a postponement, the judgment-debtor raised three specific objections to the proposed sale proclamation: (1) that the decree-holder described the entire property as non-ancestral though part was ancestral (the judgment-debtor did not specify which part), (2) that the specification/description of the property sought to be sold was incorrect because the copies of village entries supplied did not precisely match the terms of the decree, and (3) that the decree-holder was grossly undervaluing the property for sale.

The learned Subordinate Judge below dealt with the petition by refusing the objections and treating the application largely as an attempt to gain time; in particular the court below did not appear to enquire substantively into the valuation objection. The judgment-debtor appealed to this Court.

Legal Issues Presented

  1. Whether an order made in the course of proceedings under Order 21, Rule 66 CPC (relating to objections and the drawing up of a sale proclamation) can be treated as a decree or judicial determination appealable under Section 47 and the definition of "decree" in Section 2(2) of the CPC.
  2. Whether, when after notice under Order 21, Rule 66 CPC the parties are seriously at issue as to the valuation to be entered in a sale proclamation, the executing Court must judicially determine that valuation before the sale proceeds (i.e., whether the Court below should have enquired into the valuation objection).
  3. Whether a sale proclamation may be drawn up in terms different from those of the decree when the decree describes the property to be sold according to existing village papers but the copies of those entries supplied by the decree-holder do not exactly accord with the decree.

Arguments of the Parties

Appellant (Judgment-Debtor) — Arguments

  • Applied for postponement of execution pending decision on his application for review of the decree.
  • Objected that the decree-holder described the entire property as non-ancestral whereas part of it was ancestral (though the judgment-debtor did not specify which part).
  • Contended the specification/description of the property in the proposed sale proclamation was incorrect because the copies of village papers submitted by the decree-holder did not exactly match the decree.
  • Asserted that the decree-holder was grossly undervaluing the property proposed to be sold and that the Court should have enquired into valuation prior to drawing up the sale proclamation.

Respondent (Decree-Holder) — Arguments

  • Contended that no appeal lies from the order in question (i.e., that the order made under the circumstances was not appealable) and supported that contention with existing authority, specifically citing Sivagani Achi v. Subrahmaniah Ayyar and certain Calcutta High Court cases reported in Vols. 3, 10, 12 and 17 of Indian Cases.
  • Filed written grounds (seven paragraphs) in response to the judgment-debtor's objections, stating why the objections should be rejected.

Table of Precedents Cited

Precedent Rule or Principle Cited For Application by the Court
Sivagani Achi v. Subrahmaniah Ayyar Authority cited in support of the proposition that no appeal lies from an order of the executing Court made under the circumstances described (i.e., in proceedings under Order 21, Rule 66 CPC). The Court noted this authority was relied on by the decree-holder to argue non-appealability, but the judges disagreed as to the general proposition and avoided laying down a general rule. The matter was not decided as a general question of law in this opinion.
Certain Calcutta High Court cases (reported in Vols. 3, 10, 12 and 17 of Indian Cases) Authorities cited alongside Sivagani Achi in support of the non-appealability argument. The existence of these authorities was recorded as support for the decree-holder's objection that no appeal lies; the Court declined to adopt a sweeping general rule based on them in this case.
A decision of the Privy Council (unnamed) Principle that parties who have had an opportunity of obtaining a judicial decision upon a question in execution proceedings and neglected to take it cannot later attack the sale on that ground (i.e., they are taken to have abandoned the point). The opinion (Walsh, J.) invoked this Privy Council decision to support the view that questions which a judgment-debtor could have raised under Order 21, Rule 66 must be raised then or be lost; this supported the conclusion that the decision below was a determination within Section 47 and thus appealable in the particular facts of this case.

Court's Reasoning and Analysis

The opinion contains separate statements by Piggott, J. and Walsh, J., and a final short order by the Court. The Court's reasoning can be summarised in the sequence addressed in the text.

Piggott, J. — Key analytical points

  • Piggott, J. described the factual posture: decree under O.34 R.5 for sale; notice under O.21 R.66 fixed; judgment-debtor filed objections on the hearing date.
  • On the ancestral/non-ancestral contention, Piggott noted the appellant did not specify the part alleged to be ancestral, and the actual sale proclamation drawn up related only to a portion that was non-ancestral; thus that objection had no practical effect on the portion to be sold.
  • On the discrepancy between the decree's description and the village entries, Piggott held this was a matter for the decree-holder to correct; the executing Court must follow the terms of the decree and the judgment-debtor's objection that the sale proclamation be drawn in terms different from the decree was "not an arguable one."
  • On valuation, Piggott criticised the Subordinate Judge for apparently overlooking this point and treating the petition as a mere delay tactic. He emphasised that when, after notice under O.21 R.66, the parties are seriously at issue regarding valuation, the Court should enquire and determine the matter judicially rather than leave the judgment-debtor to raise objections only after sale.
  • Regarding the threshold legal question whether orders under O.21 R.66 are appealable, Piggott declined to decide the general law. He considered it dangerous both to hold that all such orders are decrees and therefore appealable, and equally dangerous to hold that none are. Given the facts (admission of appeal had produced a stay of proceedings and a fresh proclamation would be required before sale), he elected to put the broader question aside and focus on the concrete substantive point: that the valuation objection had not been judicially determined, and that this ought to be considered by the Court below before fresh proclamation.
  • Piggott proposed to "formally dismiss this appeal, making no order as to costs," but to note expressly that the valuation issue had not been judicially determined and should be considered below before a fresh proclamation.

Walsh, J. — Key analytical points

  • Walsh agreed substantially with the proposed order but differed on the characterisation: he considered that the effect of their decision was that the appeal was admissible (i.e., they were allowing the appeal in the sense of entertaining it), rather than dismissing it procedurally.
  • He declined to lay down any general principle as to the right of appeal under the section in question, warning that broad propositions beyond the particular facts cause confusion.
  • Walsh analysed the procedural record: the judgment-debtors filed eight grounds of objection in writing (on 6 October), the decree-holders filed seven written grounds (on 7 October), and the Court below dismissed the objections on consideration of these written contested grounds. To Walsh, that amounted to a judicial decision on questions which fell within Order 21, Rule 66 and which related to the execution of the decree and therefore within Section 47 of the Code.
  • He invoked the binding authority of a Privy Council decision to the effect that if a judgment-debtor had had an opportunity to obtain a judicial decision in this manner and neglected to take it, they could not later attack the sale; that reasoning supported treating the determination as one within Section 47 and thus appealable in the particular circumstances.
  • Walsh concluded that it would be illogical to hold that if a judgment-debtor did not avail himself of the opportunity there was a decision against him, but that if he did avail himself there was no decision and he could not appeal; accordingly he found a right of appeal in this case and agreed to the order proposed (with the nuanced view that the appeal was admissible).

Court's practical steps

  • The Court noted that admission of the appeal had produced a stay of proceedings and that before any sale could take place a fresh sale proclamation would be required.
  • Piggott directed that, notwithstanding the formal disposition, the valuation issue had not been judicially determined and should be considered by the Court below before drawing up the fresh proclamation.
  • Walsh endorsed the approach of deciding only the legal consequence of the facts of this case and not pronouncing a general rule of law about appealability in all similar situations.

Holding and Implications

Holding:

APPEAL DISMISSED.

Direct consequences and practical implications stated in the opinion:

  • No order as to costs was made.
  • Admission of the appeal had already produced a stay of proceedings; accordingly no sale may proceed until a fresh sale proclamation is drawn up.
  • The Court explicitly recorded that the judgment-debtor's objection as to undervaluation has not been judicially determined between the parties; the lower Court should consider that valuation issue before drawing up the fresh proclamation.
  • The Court avoided laying down any broad new principle on whether every order in proceedings under Order 21, Rule 66 CPC is a decree or always appealable; both judges declined to convert this case into a general pronouncement. Thus the opinion resolved the matter as to the specific facts and preserved the question of general law for another day.

Note: This summary reproduces and organises only the information contained in the provided opinion. It does not assert or infer any facts, rulings, or authorities beyond those explicitly referenced in that text.

Show full summary ...

    Shiam Lal v. Roshan Lal And Others

    Piggott, J.:— This is an appeal by a judgment-debtor in an execution case. A decree had been passed under O. 34, R. 5 of the CPC, for sale of certain mortgaged property Notice was issued to the parties fixing the 6th October as the date on which the Court would proceed to hold an enquiry under the provisions of O. 21, R. 66 of the CPC. with a view to drawing up a proper sale proclamation. On that date the judgment-debtor put in what is described as a petition of objection. On the face of it the most substantial point taken appears to be that the judgment-debtor was seeking for a review of the decree, and he wished to have a postponement of the execution proceedings until his application for review of the decree should be disposed of. For reasons not apparent on the face of the record, the learned Judge of the Court below evidently viewed this application with the utmost disfavour and was strongly disinclined to order a postponement of the execution proceedings. I may note that the judgment-debtor's application for review of the decree has since failed, and if; may be that the learned Judge of the Court below had reasons for supposing, that it was bound to fail. It so happened however that the judgment-debtor, besides-asking for the postponement of the proceedings, laid before the Court certain objections to the drawing up of the sale proclamation in the terms proposed by the decree-holder. One objection was that the decree-holder was describing the whole of the property in question as non-ancestral whereas a part of it was ancestral. The judgment-debtor did not specify what was the part of the property to which this objection referred, and as a matter of fact we are informed that the sale, proclamation actually drawn up related only to a portion of the property covered by the decree and that this portion was certainly non-ancestral.

    2. Another objection taken was that the specification of the property sought to be sold was incorrect. Apparently the decree-holder was in a somewhat unfortunates position. His decree purported to give the description of the property ordered to be sold in village Rajpur according to the entries in the existing village papers; yet the copies of those entries put in by the decree-holder himself were not in exact accordance with the terms of the decree.

    3. This was a matter for the decree-holder to attend to. If his decree was inaccurate, that is to say if the decree stated that the property to be sold was described in the existing village papers in such and such terms, whereas it was actually described in slightly different terms, it was obviously advisable for him to secure a correction of the decree. He could not however execute the decree otherwise than in accordance with its terms, and the judgment debtor's objection that the sale proclamation should be drawn up in terms different from those of the decree was not an arguable one.

    4. The third point taken was as to the valuation of the property proposed to be sold. The judgment-debtor's point was that the decree-holder was grossly undervaluing it. This point the learned Sub-ordinate Judge seems to have altogether overlooked. He evidently regarded the judgment-debtor's petition as in substance a mere attempt to gain time. He thought the objections taken, apart from the application for adjournment, to be merely frivolous objections, and he does not seem to have set himself to enquire whether the objection with regard to the valuation of the property had any substance in it or not. It is a matter in which it was incumbent on the Court to make a careful enquiry. If after issue of notice under O. 21, R. 66 of the CPC, the Court finds that the decree-holder and the judgment-debtor are seriously at issue with regard to the valuation of the property to be entered in the sale proclamation, it is certainly admissible that it should go into the matter and determine it judicially, instead of accepting without question the decree-holder's valuation and leaving it been to the judgment-debtor to raise objections after the sale has taken place. When the present appeal however came up for hearing an objection was immediately taken on behalf of the decree-holder-respondent to the effect that no appeal lies from such an order as the one now in question.

    5. This objection is supported by a certain amount, of authority, more particularly by the case of Sivagani Achi v. Subrahmaniah Ayyar (1), and some case of the Calcutta High Court reported in Vols. 3, 10, 12 and 17 of Indian Cases. If however the order now before us is to be treated as a judicial determination between the parties that the, valuation sought to be put upon the property in the sale proclamation was correct, then it is difficult to see how the judgment-debtor can be precluded from appealing to this Court against that decision, in view of the definition of the word “decree” given in the present Section 2(2) of the CPC and the reference to S. 47 of the same Code made in the said definition. It seems to have been taken for granted in the Madras and other cases referred to above that a judgment-debtor would always be able to raise the question under the provisions of O. 21, R. 90, if he could show that the property sold had in fact been undervalued in the sale proclamation and that he had suffered loss in consequence. But the question which we have to consider is whether, if a judgment-debtor has raised the point at a previous stage under O. 21, R. 66, and it can be shown to have been judicially determined against him, he could be permitted to raise it at any subsequent stage.

    6. Under the circumstances of this particular case, I think we need not go into the general question of law involve. It might be equally dangerous to lay it down that all orders passed by, an executing Court in the course of proceedings held under O. 21, R. 66 of the CPC, are decrees, and appealable as such, as to lay it down that no order which can possibly be passed under the above circumstance can amount to an appealable decree. In the present case the real purpose, of the judgment-debtor's application has been served by the mere admission of the appeal by this Court. There has been an order staying proceedings and before any sale can now take place, there will have to be a fresh sale proclamation. Under these circumstances I think the best course we can take is, putting on one side the question of law argued before us, to consider only the one substantial point, taken by, the judgment debtor namely, that his allegation as to the undervaluation of the property by the decree-holder has never been enquired into. I would propose, therefore formally to dismiss this appeal, making no order as to costs; but at the same time to note that the question of the valuation of the property raised by the judgment-debtor's objection has not been judicially determined between the parties and should be considered by the Court, below before drawing up the fresh proclamation which will now be necessary.

    Walsh, J.:— I agree substantially in the order, proposed, except that I think that we are allowing the appeal and not dismissing it. We are not deciding anything beyond the legal consequence of the facts in this particular case. For my own part I do not propose to add to the existing confusion by attempting to lay down any general principle as to the right of appeal under this section. The effect of laying down general propositions beyond the facts of the particular case which a Court has to decide invariably leads to conflict of authorities and to confusion. It is quite plain that one decision at any rate, namely, that no order under the section is appealable goes too far. It was not necessary for the decision which was come to in that case to say what the Court said, and to that extent it is impossible to agree with that decision. In my opinion the appeal is admissible is this case for the following reasons. On 6th October after notice given to them under O. 21, R. 66, the judgment-debtors filed eight grounds of objection in writing. On the 7th October seven grounds were filed by the decree-holders in writing, stating the reasons why the objections of the judgment-debtors ought to be rejected. Upon a consideration of these fifteen paragraphs of controversial pleadings the Court below dismissed the objections. To my mind that was a judicial decision. The questions raised on the objections which were fought and determined, were questions which are indicated in O. 21, R. 66. It cannot be denied that they are questions arising between the parties. It cannot be denied that they are questions relating to the execution of the decree. It follows that they are questions within S. 47. The decision complained of was, therefore, a determination, call it what you like, of a question under S. 47. From such determination an express right of appeal it given by the Code.

    7. If I were not led by the language of the Code to this conclusion, I should be driven to it by a decision of the Privy Council. It is clear law binding upon us that such questions as were raised by the judgment-debtors in this case, cannot be raised by them after sale, if they subsequently allege loss and attack the sale, when they have had an opportunity of raising them in this manner and have failed to avail themselves of it. The Privy Council has so decided. That decision means that having had an opportunity of obtaining a judicial decision upon a question and having neglected to take it, they must be taken as between themselves and the decree-holder to have abandoned the point for all time. It seems, therefore, to me that to hold otherwise than we are holding in this case would be to say, in respect of the same matter, that if the judgment-debtor did not avail himself of the opportunity there was a decision against him; but that if he did avail himself of the opportunity, there was no decision and he cannot appeal. Such a result would seem to me to be illogical, and as find that the appellant's contention is consistent with the plain language of the Code I hold that in this case there is a right of appeal. I agree in the order proposed.

    8. By the Court.—The appeal is dismissed. No order as to costs.

    V.B/R.K

    9. Appeal dismissed.

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    Comments

    Shiam Lal v. Roshan Lal And Others
    (Feb 11, 1916)