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PATNA HIGH COURT
N.L.Untwalia, J.
Nageshwar Prasad
Versus
Lakshman Prasad
A.F.A.O. No. 291 of 1957 ;
Decided On : SEPTEMBER 19, 1959
CIVIL PROCEDURE CODE - ORDER XXI RULE 90 - APPLICATION TO SET ASIDE SALE - GROUNDS - EXEMPTION OF PROPERTY FROM SALE - NOTICE UNDER BIHAR MONEY-LENDERS (REGULATION OF TRANSACTIONS) ACT, 1939, SECTION 13 - SERVICE ON JUDGMENT-DEBTOR.
Fact of the Case:
The judgment debtors filed a miscellaneous second appeal against the concurrent decision of the lower courts refusing to set aside a sale held at their instance. The judgment debtors contended that the decree in question was obtained from the Subordinate Judge exercising powers under the Provincial Small Cause Courts Act and there was no order transferring the decree to its ordinary original civil side to execute as a money decree by attachment and sale of immovable property. They also contended that the house sold in execution of the decree was exempt from sale under Section 60 of the Code of Civil Procedure and that the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was not served on the second appellant.
Finding of the Court:
The court held that the decree-holder had made a prayer to transfer the small cause courts decree from the small cause side to the ordinary original civil side in the execution petition itself and the court proceeded to execute the decree as a money execution and proceeded to attach and sell the immovable property. The court also held that the judgment debtors could have asked the executing court to exempt the property from sale under Section 60 of the Code of Civil Procedure but they did not do so and therefore they were not entitled to ask the court to set aside the sale on this ground. The court further held that the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was served on both the appellants and even if there was an irregular service of notice, the appellants had sustained no substantial injury on account of the sale in question.
Issues: 1. Whether the decree was properly transferred from the small cause side to the ordinary original civil side for execution? 2. Whether the house sold in execution of the decree was exempt from sale under Section 60 of the Code of Civil Procedure? 3. Whether the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was served on the second appellant?
Ratio Decidendi: 1. The court held that the decree-holder had made a prayer to transfer the small cause courts decree from the small cause side to the ordinary original civil side in the execution petition itself and the court proceeded to execute the decree as a money execution and proceeded to attach and sell the immovable property. The court also held that the judgment debtors could have asked the executing court to exempt the property from sale under Section 60 of the Code of Civil Procedure but they did not do so and therefore they were not entitled to ask the court to set aside the sale on this ground. The court further held that the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was served on both the appellants and even if there was an irregular service of notice, the appellants had sustained no substantial injury on account of the sale in question. 2. The court held that the decree-holder had made a prayer to transfer the small cause courts decree from the small cause side to the ordinary original civil side in the execution petition itself and the court proceeded to execute the decree as a money execution and proceeded to attach and sell the immovable property. The court also held that the judgment debtors could have asked the executing court to exempt the property from sale under Section 60 of the Code of Civil Procedure but they did not do so and therefore they were not entitled to ask the court to set aside the sale on this ground. The court further held that the notice under Section 13 of the Bihar Money-Lenders (Regulation of Transactions) Act, 1939 was served on both the appellants and even if there was an irregular service of notice, the appellants had sustained no substantial injury on account of the sale in question.
Final Decision: The appeal was dismissed.
N.L.Untwalia, J.
1. This is a miscellaneous second appeal by the judgment-debtors against the concurrent decision of the Courts below refusing to set aside a sale, held on the 8th of June, 1955, at their instance.
2. A preliminary objection has been raised on behalf of the decree-holder respondent that no second appeal lies to this Court. This objection is made on the ground that the application, strictly speaking, was under Order XXI, Rule 90 of the Code of Civil Procedure, and, therefore, no second appeal lies. There seems to be some difficulty because of the provisions of Sec.102 of the Code of Civil Procedure also, but, since on merits, I am going to dismiss the appeal, I do not decide this preliminary objection.
3. Three points were pressed before me by Mr. S.C. Mukherjee, learned Counsel for the appellants. I shall go on stating them and discussing them one by one.
4. The first contention is that the decree in question had been obtained from the Subordinate Judge, 1st Court, Muzaffarpur, exercising his powers under the Provincial Small Cause Courts Act; and there was no order by that Court transferring this small cause courts decree to its ordinary original civil side to execute as a money decree by attachment and sale of immovable property. This submission was based upon a decision of the Madras High Court in Lakshminarasamma V/s. Seshayya, AIR 1951 Mad 491. Some Lahore and Peshawar decisions were also cited, but I need not specifically mention them. The point decided in the Madras case is that, if there is neither any application for transfer of the small cause courts decree to the ordinary original civil side of the Court nor any order to that effect, the Court cannot execute the decree and proceed against immovable property, even though the Court may be the same. On reference to the facts of that case, it would be noticed that there was neither the required application nor the order when the execution case was filed.
An amendment petition was filed on a date which was beyond 12 years of the date of the decree, that is to say, beyond the maximum period provided in Sec. 48 of the Code of Civil Procedure. It was, under those circumstances, held that this was not permissible and the amendment could not be allowed beyond the period of limitation as in the initial stage of the execution case neither there was any application for transfer nor any order to that effect. In the present case, it would appear that in the execution petition itself the decree-holder had made a prayer to transfer the small cause courts decree from the small cause side to the ordinary original civil side.
The Court, thereafter, proceeded to execute this decree as a money execution and proceeded to attach and sell the immovable property. A formal and express prayer on behalf of the decree-holder was there, a formal express order was not there. But, in effect, it must be held that the Court proceeded to execute this decree by attachment and sale of the immovable property after transferring it from its small cause side to the ordinary original civil side.
The observations in the Madras case to the following effect would, therefore, show that this case is not helpful to the appellants here :
"But it is one thing to say that no formal application or order is necessary for transfer to the original side, and quite a different thing to say that no application or order is necessary for transfer to the original side."
The present case is covered by a Bench decision of the Travancore-Cochin High Court in Mohd. Mastan Kunju Mohammad Abdul Khadar V/s. Mytheen Kunju Pakiru Mohammad, AIR 1956 Trav-Co. 213. In that case neither there was any formal prayer nor any formal order, yet it was held that, when the Court proceeded to execute the decree on its ordinary original civil side, it proceeded, in effect, after transferring the decree from its small cause side to the ordinary original side. In the instant case the position is much better, as there was an ex
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