Rajendra Narain Bhanj Deo vs Sri Janak Kishori Devi and Others

Sinha, J.—This application in revision arises under rather exceptional circumstances which have got to be stated, however shortly, in order to appreciate the points in controversy between the parties. The petitioner advanced a large sum of money to Babu Chandreshwar Prasad Narain Singh of Maksudpur on a simple mortgage of certain immovable properties which are mostly proprietary interests in a large number of villages. The mortgage bond is dated 16-2-1924. The mortgagee instituted a suit, being Suit No. 27 of 1935, in the Court of the Subordinate Judge of Patna for sale. A preliminary decree for sale was passed for about six lacs of rupees, and was made final on 16.3-1937. Execution case No. 13 of 1988 was started; but, as the mortgagor''s estate had gone under the Court of Wards, execution was stayed at the instance of the Manager, Court of Wards. But, soon after, the estate was released by the Court of Wards. Then followed certain infructuous proceedings at the instance of the judgment-debtor, who alleged satisfaction of the decree. The decree-holder took out another execution, and the judgment-debtor started proceedings under the Bihar Money-Lenders Act for valuation of the mortgaged properties. Ultimately, by his judgment, dated 16-12-1940, the learned Subordinate Judge fixed the valuation of the various items of the properties, comprising zamindari interest, forest land, buildings, or chards, etc. The learned Subordinate Judge had directed that fifteen times the net income from zamindari properties should be taken as the market price. Against the orders of the learned Subordinate Judge fixing the valuation, an appeal was preferred by the judgment-debtor, and the case was numbered as Miscellaneous Appeal No. 26 of 1941. The decree-holder''s appeal, which was in the nature of a cross-appeal, was numbered as 57 of 1941. As a result of these proceedings, the execution remained stayed. During the pendency of the appeals in this Court, the original mortgagor. Judgment debtor died, and he was substituted on the record by his widow, and on her death, the opposite parties 1 to 5 came to be substituted. A Division Bench of this Court heard the aforesaid appeals arising out of the valuation proceedings, and the judgment of this Court is dated 23rd August 1946. The result of the judgment of this Court was that the appeal of the judgment-debtor was allowed in part, and the decree-holder''s appeal substantially dismissed. This Court directed that the net income of the properties as determined by the learned Subordinate Judge should be increased on the basis of the income stated in the mortgage bond of the year 1924, and the enhanced net income should be multiplied by twenty in order to obtain the valuation. Similarly, the valuation of the buildings and the forests was also substantially increased. The net result of the order of this Court was that the total valuation fixed by the learned Subordinate Judge at Rs. 13,15,000 was enhanced approximately to twenty-five lacs of rupees.

Subsequently, the decree-holder made an application to the Court below to the effect that the value of the zamindari properties as also of bakasht and forest lands had very much been affected adversely by certain recent legislations of the Provincial Legislature as also some impending legislation for the abolition of zamindari. He, therefore, prayed to the Court below for re-valuing the properties, keeping in view the following facts: (1) that the Bihar Private Forests Act 3 [III] of 1946 very much restricts the right of private individuals in forests, and authorises the Provincial Government to issue a notification under the Act practically assuming control of private forests also; (2) that the Bihar Tenancy (Second Amendment) Act 14 [XIV] of 1946 has so amended Section 40, Bihar Tenancy Act of 1885 as to deprive the landlord of the benefits of rise in prices after 1939, and given the tenants the right to claim commutation of rent on the basis of prices prevailing during the depression in the years 1930 to 1938; (8) that the Bihar Bakasht Disputes Settlement Act 13 [XIII] of 1947 makes it obligatory for zamindars to submit to arbitration when their rights to bakasht lands are disputed by tenants, which has the effect of very much depressing the value of bakasht lands, and (4) finally the proposed legislation, which has recently been introduced in the Provincial Legislature for abolition of zamindari and further proposing to grant compensation on the basis of five years'' purchase in respect of considerable zamindaris like the one in question. It was also alleged that recently there had been floods, which had deposited sand on lands of many of the villages in mortgage, thus decreasing the productive capacity of lands in the zamindari generally. It was also stated that, in pursuance of the amendment of Section 40, Bihar Tenancy Act, the entire tenantry had made applications for commutation of rent, and it is apprehended that the commuted rent will be decreased by more than 50 per cent, of the present assets of the estate. It was contended before the learned Subordinate Judge that, as a result of these happenings, the value of the mortgaged properties had considerably diminished. Hence, it was prayed that fresh evidence may be recorded, and fresh valuation made on the basis of the new data to be supplied by the parties. The learned Subordinate Judge dismissed the application, holding that it was not open to the Court to make a fresh valuation of the properties. Hence this application in revision by the decree-holder.

Mr. C.P. Sinha, appearing on behalf of the petitioner decree-holder, contended that the orders of the learned Subordinate Judge refusing to revalue the properties after recording fresh evidence in view of the fresh developments, referred to above, had refused a jurisdiction vested in him by law. He contended further that, on the authority of the Division Bench ruling of this Court in Kedar Nath Vs. Banwari Rai, it is open to the Court in a proper ease to revise the valuation already made, as it was not such a final order between the parties as to be binding upon them for all times.

The judgment-debtors opposite-party contested the application by contending that the decree-holder had misconceived his remedy by making the application for a fresh valuation; that his remedy lay in an application for review of the judgment of this Court in the valuation matter, whereby this Court increased the valuation considerably; that, though the order of this Court in the valuation proceedings may not have been a final decree, it was a final order between the parties; that there is no provision either in the CPC or in the Bihar Money-Lenders Act authorising the Court to revise the valuation once made; that, at any rate, the grounds urged for re-valuing the properties were wholly speculative and conjectural; and lastly, that, is any view of the matter, there was no error of jurisdiction in the orders of the learned Subordinate Judge attracting the revisional jurisdiction of this Court.

The most important question to be determined in this application is whether the order of this Court passed on appeal from the orders of the learned Subordinate Judge valuing the properties can be said to be binding on the parties for all times so as to prevent either the decree-holder or the judgment-debtors from asking the Court to come to a fresh valuation even if a proper case for such a re-valuation is made out. The Division Bench ruling of this Court in Kedar Nath Vs. Banwari Rai, is an authority for the proposition that no second appeal lies from an order valuing the properties to be sold in execution of a decree. I was a party to that judgment. While discussing the question whether the valuation once made was final between the parties for all times I made the following observations:

One may easily conceive of circumstances were the valuation, once determined by the Court u/s 18, may not bind the parties for all times, that is to say, be long as the decree has not been satisfied and is capable of execution. Circumstances may so radically affect the value of the property once determined that the Court may have to revise the valuation previously made by itself; for example, a new legislation or the fluvial action of a river or the act of God may affect the value of the property for better or for the worse to such an extent that it would be manifestly unjust to the parties, or either of them, to hold them fast to the valuation once made by the Court before any of those circumstances supervened.

It would appear that this Court was of the opinion that the valuation was not such a final order as is contended for on behalf of the opposite party. Of course, generally speaking, the valuation proceedings do not occupy more than a few months, and the execution proceedings are thereafter carried to their conclusion with the practical result that the valuation binds the parties to the execution proceedings, and is given effect to by the Court in the execution proceedings. But, where, as in the present case, the valuation proceedings have taken about seven years, and it is alleged by one of the parties to the execution that the value of the properties has been materially affected by recent legislations of the Provincial Legislature and other events like fluvial action of the river, it becomes necessary to go into the question of valuation over again on such fresh materials as may be forthcoming. The Court, on going into all that fresh evidence, may come to the conclusion that the valuation has not been affected at all or it may) come to the contrary conclusion. That is for the Court to decide. But it is not right to say that the Court is precluded from going into the question of fresh valuation whatever may have happened between the first valuation and the application for afresh valuation. In my opinion, if a proper case is made out, it is open to the Court to make a fresh valuation of the properties to be sold in execution of a decree for payment of money. No authority has been cited before me laying down the proposition contended for on behalf of the opposite party that the valuation once made can never be revised even though circumstances may have completely changed the shape of things, radically affecting the value of the properties for the better or for the worse. I may also add that, when the decree-holder made an application for leave to appeal to His Majesty in Council in Privy Council Appeals Nos. 41 and 42 of 1946, which was heard by a Division Bench of this Court, consisting of .Shearer and Ray JJ. it was contended on behalf of the judgment-debtors-opposite party that the order of the High Court was not final so as to entitle the decree-holder to go up in appeal to His Majesty in Council. Shearer J. gave effect to that contention, and held that no second appeal, including an appeal to His Majesty in Council, was permissible in such a case. Ray J. was inclined to the contrary view; but he did not dissent from the Division Bench ruling in Kedar Nath Vs. Banwari Rai, referred to above. The application for leave to appeal fb His Majesty in Council was, therefore, dismissed. The opposite party are now contending that those very orders of this Court passed in appeal are final in the sense that in no circumstances can the Court make a fresh valuation of the properties. I am not prepared to accept the contention that the orders of this Court are final in that sense. The judgment of this Court was passed on the evidence recorded by the learned Subordinate Judge in 1940. Certainly, the order of this Court in the valuation proceedings at the appellate stage must be held to be final between the parties unless set aside by a higher tribunal or modified on a review application. Mr. Mahabir Prasad for the opposite party contended that the decree, holder should have moved this Court for review of its judgment, and should not have moved the learned Subordinate Judge for revising the valuation. In my opinion, there is no substance in this contention. The decree-holder did not move the Court below for revaluing the properties on any of the grounds contemplated, by Rule 1 of Order 47, Civil P.C. It was not the decree-holder''s case that there was any error apparent on the face of the judgment of this Court or that any new evidence has been discovered which was in existence at the time this Court gave its judgment but which could not have been discovered with due diligence for being placed before the Court below or before this Court. The grounds on which the Court below was moved for re-valuing the properties were that certain enactments had come into existence as a result of which the value of the properties sought to be sold in execution of the decree had been materially diminished and that by the fluvial action of the river, sand had been deposited in considerable areas which had affected the value of the bakasht lands. Those grounds would not be sufficient grounds for an application for review of judgment. Hence, there is no substance in the contention that the proper remedy available to the decree-holder was to make an application for review of the judgment of this Court. If I am right in the conclusion that it is open to the Court to make-a re-valuation of the properties if proper and sufficient reasons are established for doing so, it follows that there is nothing in the CPC or in the Bihar Money Lenders Act to stand in the way of such a course being adopted.

Whether there are sufficient grounds for making a re-valuation has not been determined by the Court below after going into evidence which was sought to be adduced on behalf of the decree-holder. The Court below appears to have taken the view that there is no warrant in law for making a fresh valuation of the properties, and, in that view of the matter the Court below refused to go into evidence. The grounds alleged for making a re-valuation on the face of them, are worthy of serious consideration. Whether or not those grounds would be established is a matter which must be determined after going into evidence, which has not been done so far. But the grounds cannot be brushed aside by simply characterizing them as speculative or conjectural. Those are grounds which may be established by good evidence or may not be; but that is a matter into which this Court cannot go at this stage. At this stage, the only question for determination by this Court is whether prima facie the grounds alleged are such as to justify the Court in reopening the valuation matter and going into it over again, and in my opinion, it cannot be said that those recent happenings can altogether be ignored as not having any effect on the value of the properties sought to be proceeded against. That being so, it cannot be said as it was urged on behalf of the opposite party, that there is no error in the exercise of jurisdiction in the orders of the Court below. When the Court below refused to go into evidence which was sought to be adduced by the decree-holder in support of his allegations that the value of the properties had been materially affected by those recent happenings, the Court below clearly refused to exercise a jurisdiction vested in it by law. If the Court below, after receiving evidence, had held that those vents had not affected the valuation of properties, there would have been an end of the matter, and this Court would not then have interfered in its revisional jurisdiction; but when the Court below refused to consider the case on merits on evidence to be adduced by the parties, it certainly refused to exercise the powers vested in it by law.

It was urged on behalf of the opposite party judgment-debtors that the decree holder had been trying to delay the sale of the properties, as interest was accumulating and the decree-holder was in no hurry to sell the properties for realisation of his decretal debt. It was also urged that the judgment-debtors were very much in earnest about paying off the decree as quickly as possible. It was, therefore, suggested that the properties should be sold without any further delay and the decree satisfied. Ordinarily, it is the judgment-debtors who obstruct the speedy realisation of a decree. The position may be different in this case. But the decree-holder also expressed, through his counsel, his desire to have his decree satisfied as early as possible. Hence, both parties'' lawyers expressed their keen desire that the execution proceedings should be brought to a successful conclusion without any further delay. But, if the decree-holder is so minded as to delay the execution of the decree, the Court will be helples to assist the judgment-debtors in their desire to have the properties put up to sale as early as possible. The Bihar Money Lenders Act does not compel the decree-holder either to bid for the property or to purchase the property at the price fixed by the Court. It is open to the decree-holder either to refuse to bid at all or to bid only up to a certain sum. If other bidders are not forthcoming to bid up to the valuation fixed by the Court, the property cannot be sold unless the decree-holder:

consents in writing to forgo so much of the amount decreed as is equal to the difference between the high-eat amount bid and the price specified for such property in the sale proclamation.

But all the same it is in the interest of all the parties concerned that the properties should be sold as expeditiously as possible, otherwise events may happen which may introduce further complications or may tend further to diminish the value of the properties. At the same time, the legislature or the Court may be generous to the judgment-debtors, but they have also got to be just to the decree-holders. Hence, with a view to safeguarding the interests of all the parties to this litigation, it is only just that a sufficient portion of the properties already valued should be advertised for sale after the decree, holder has been given the opportunity of choosing the properties which he would prefer to be sold in the first instance in satisfaction of his entire claim under the decree. When the decree-holder has expressed his choice, those properties should be advertised for sale at the value fixed for them in accordance with the judgment of this Court in the valuation matter. If the decree-holder himself or a third party bids for those properties up to the valuation fixed by the Court or for a higher value, those properties will be sold and the money applied to the satisfaction of the decree either in its entirety or pro tan to. But if the sale proves infruotuous, that is to say, if neither the decree-holder nor any third parties bid for those properties or some of them up to the amount fixed by the Court as the value of those properties, and on that account, the properties cannot be knocked to the highest bidder, that will be an indication as to the valuation of the properties. In that event, if the whole or any portion of the decree remains unsatisfied, the Court will value such of the properties as the decree-holder chooses afresh, and then a second sale proclamation will have to be issued on a valuation to be subsequently fixed by the Court. It is only in this way that the conflicting view points of the judgment debtors and the decree holder can be reconciled.

In view of these considerations, the orders passed by the Court below are set aside, and it is directed that the executing Court will proceed with issuing the sale proclamation as quickly as possible in respect of such of the properties as may be chosen by the decree-holder. If the sale proclamation results in a sale of the proper. ties in accordance with the provisions of the Bihar Money Lenders Act and sufficient amount realised so as to liquidate the entire decretal dues of the decree-holder nothing further need be done. But, if the sale proclamation does not result in a sale of the properties, either all of them or some of them as originally advertised, such of the properties as are not sold shall have to be put up for sale again after a revaluation is done on receiving such evidence as the parties may think fit to adduce at that stage.

The rule is accordingly made absolute with costs; hearing fee five gold mohurs.

Mukharji, J.

I agree.