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HIGH COURT OF CALCUTTA
P. N. MUKHERJEE, GUHA RAY
GAYAPROSAD - Appellant
Versus
SETH DHANRUPMAL BHANDARI - Respondent
AFOO 183 Of 1952
Decided On : JUNE 3, 1953
CIVIL PROCEDURE CODE - Section 47 - Appeal - Maintainability - Objection under Section 35, Bengal Money-Lenders Act - Whether appealable - Waiver of right to object - Effect - Section 35, Bengal Money-Lenders Act - Mandatory provision - Applicability of law of waiver - Notice under Section 34, Bengal Money-Lenders Act - Validity of final mortgage decree - Scope of Section 47, Civil Procedure Code - Insertion of two valuations in sale proclamation - Validity.
Fact of the Case:
The appellant, a judgment-debtor, challenged the sale proclamation issued in a mortgage execution case, alleging non-compliance with Section 35 of the Bengal Money-Lenders Act. The appellant had not objected to the settlement of the sale proclamation despite being served with notice under Order 21, Rule 66 of the Civil Procedure Code. The appellant filed an application under Section 47 of the Civil Procedure Code, which was dismissed by the trial court.
Finding of the Court:
The court held that the appeal was maintainable as the objection raised under Section 35 of the Bengal Money-Lenders Act affected the rights and liabilities of the parties and required judicial determination. However, the court found that the appellant had waived his right to object to the terms of the sale proclamation, including the possible ground under Section 35 of the Bengal Money-Lenders Act, by not appearing and objecting earlier despite having ample opportunity to do so. The court also held that Section 35 of the Bengal Money-Lenders Act was a mandatory provision, but the law of waiver applied to it as it was solely for the benefit of the judgment-debtor. The court further held that the objection under Section 34 of the Bengal Money-Lenders Act, which was not pressed in the lower court, was beyond the scope of Section 47 of the Civil Procedure Code and could not be entertained in the appeal. The court also upheld the insertion of two valuations in the sale proclamation, finding it to be warranted by the proviso added to Order 21, Rule 66(2) of the Civil Procedure Code and supported by earlier decisions of the court.
Issues: 1. Whether the appeal was maintainable? 2. Whether the appellant had waived his right to object to the terms of the sale proclamation? 3. Whether Section 35 of the Bengal Money-Lenders Act was a mandatory provision and whether the law of waiver applied to it? 4. Whether the objection under Section 34 of the Bengal Money-Lenders Act was within the scope of Section 47 of the Civil Procedure Code? 5. Whether the insertion of two valuations in the sale proclamation was valid?
Ratio Decidendi: 1. An appeal is maintainable if the objection raised affects the rights and liabilities of the parties and requires judicial determination. 2. The right to object to the terms of a sale proclamation can be waived by the judgment-debtor by not appearing and objecting earlier despite having ample opportunity to do so. 3. Section 35 of the Bengal Money-Lenders Act is a mandatory provision, but the law of waiver applies to it as it is solely for the benefit of the judgment-debtor. 4. An objection under Section 34 of the Bengal Money-Lenders Act, which attacks the validity of the final mortgage decree on the ground of an alleged irregularity or illegality in the making thereof, is beyond the scope of Section 47 of the Civil Procedure Code and cannot be entertained in an appeal. 5. The insertion of two valuations in a sale proclamation is valid if it is warranted by the proviso added to Order 21, Rule 66(2) of the Civil Procedure Code and is supported by earlier decisions of the court.
Final Decision: The appeal was dismissed with costs.
( 1 ) THE appellant Gayaprosad was one amongst a number of judgment-debtors under a mortgage decree. The mortgage was of the year 1935. The property mortgaged was a two-storied brick-built house at Kharagpur together with land appertaining thereto comprising an area of about 11 decimals and the amount advanced upon the mortgage was Rs. 7,500/ -. In the year 1941, the mortgagee Seth Dhanrupmal Bhandari instituted Mortgage Suit No. 22 of 1941 in the First Court of the Subordinate Judge at Midnapore for the recovery of his dues under the said mortgage. The suit was decreed preliminarily on 31-1-1952, and the appeal therefrom was disposed of by this Court on 7-5-1946. Thereafter a final decree was made in the suit on 18-1-1950, and the same was put into execution on 15-3-1950, in Mortgage Execution Case No. 13 of 1950 of the First Court of the Subordinate Judge at Midnapore. After service of the usual notices under Order 21, Rule 66, Civil P. C. , and other usual steps the mortgaged property was advertised for sale. The sale proclamation was issued on 3-7-1951 and the sale was fixed for 16-8-4951. Two days before the date fixed for the sale, that is, on 14-8-1951, the appellant Gayaprosad who was judgment-debtor No. 1 applied under Section 47, Civil P. C. , raising objection to the proposed sale. This application was dismissed by the learned Subordinate Judge on 4-3-1952, and the sale was eventually held on 15-5-1952, when, it appears, the mortgaged property was sold and purchased by a third party for Rs. 23000/ -. On 2-6-1952, the present appeal was filed by the appellant (judgment-debtor No. 1) against learned Subordinate Judge's order, dated 4-3-1952, rejecting his objections under Section 47, Civil P. C. On 11-6-1952, this appeal was admitted under Order 41, Rule 11, Civil P. C. , and since then further proceedings in the execution case (Mortgage Execution Case No. 13 of 1950 of the court of the First Subordinate judge of Midnapore) have remained stayed under orders of this Court.
( 2 ) ON the appellant's application under Section 47, Civil P. C. , the main objection that was raised was to the effect that, as the sale proclamation had not been settled in compliance with the provisions of Section 35, Bengal Money-Lenders Act, the proceedings for sale were contrary to law and should be vacated and the execution case should commence again from the stage of settlement of the sale proclamation. The learned Subordinate Judge negatived this contention upon the view that the appellant (Judgment-debtor No. 1) not having objected in time to the settlement of the sale proclamation, or, to be more particular, to the valuation or valuations put in the sale proclamation, no such objection was open to him and it could not be entertained by the court. This decision is challenged in this appeal.
( 3 ) A preliminary objection was sought to be raised to the maintainability of this appeal on the ground that, as Section 35, Bengal Money-Lenders Act, was really part of the procedure for the settlement of the sale proclamation, the proceedings under that section were in substance proceedings under Order 21, Rule 66, Civil P. C. , (Vide -- 'mamindra Chandra v. Jagadish Chandra', 50 Cal WN 266 (A) and, as such, were not open to appeal. This objection was apparently based upon the observations, made by Sulaiman, J. , in the case of --'shyamakant Lal v. Rambhajan Singh', AIR 1939 FC 74 (B), Federal Court, at pages 80 and 81 of the Report, and upon the line of cases, noticed by that learned Judge there, the principle of which cases was followed in the recent decision of the Madras High Court reported in -- 'rangachariar v. Trinity Bank, Ltd. , Trichinapoly', AIR 1948 Mad 411 (C) and, still more recently, by the Allahabad High Court in -- 'premwati v. Satyawati Jain'. Side by side, however, with the line of cases, referred to above, there is another series of decisions to which belong cases of the type, reported in -- 'devendra Nath
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