Asharam Thikadar v. Bijoy Singh Chapra

Mukherjea, J.:— Having heard Mr. Bagchi for the Appellant and Mr. Khaitan for the Respondent we are of opinion that the Court below approached the case from a wrong standpoint and failed to advert to the specific provisions of sec. 35 of the Bengal Money-Lenders Act, 1940.

2. In the first place, the learned Subordinate Judge was not right in saying that sec. 35 of the Bengal Money-Lenders Act is not applicable to mortgage decrees.

3. There is nothing in the section which excludes mortgage decrees from its operation. In the second place, we think that in carrying out the directions of that section, it is incumbent upon the Court not only to specify so much of the property of the judgment-debtor which it considers saleable at a price sufficient to satisfy the decree, it must also specify the price of the property below which it cannot be sold. In our opinion in cases coming under sec. 35 of the Bengal Money-Lenders Act, the Court has got to determine the price of the property which is to be put up for sale on proper evidence, and one and only one valuation can be given in the sale proclamation. The direction of sec. 35 of the Bengal Money-Lenders Act cannot be complied with by mere insertion of the two valuations given by the decree-holder and the judgment-debtor respectively.

4. The result, therefore, is that we set aside the order of the Court below and send the case back to that Court in order that the matter might be considered further and proper orders made in conformity with the provisions of sec. 35 of the Bengal Money-Lenders Act. The Court below will take up the matter with as much expedition as possible, and on a consideration of the evidence which both parties might choose to adduce, determine whether it is proper and necessary to sell the entire property, or it is enough that a portion of it should be sold for the satisfaction of the decretal dues. If it is satisfied that only a portion of it should be sold, it will specify the portion with reference to area and boundaries. Whether the whole or a portion of the property is directed to be sold there should be one price specified in the sale proclamation.

5. We direct that the records should be sent down at once and the Court below should finish these enquiries as early as possible.

Pal, J.:— I agree.

C.C