JUDGMENT : The learned counsel for the appellant has given an application to convert this first appeal into an appeal from order. The learned counsel for the respondents have no objection, and hence this appeal is treated as an appeal from order.

2. The appeal is against the order of the lower court rejecting an application to set aside the Court sale held in Darkhast No. 156/50 in Jurisdiction Suit No. 236/47 to recover mortgage money. The contentions of the judgment-debtor contained in that application were all rejected by the lower Court, and they are re-argued in this appeal. The first is that the property was purchased by a person who had acted as a Panch at the time of the valuation of the property. It is, therefore, contended that under Order 21, Rule 73, C.P. Code, the sale is vitiated. Order 21, Rule 73, C.P. Code reads as follows :-

"No officer or other person having any duty to perform in connection with any sale shall, either directly or indirectly, bid for, acquire or attempt to acquire any interest in the property sold".

3. A person who acts as Panch at the time of the valuation of property for the purpose of including the estimation of the value of the property in a proclamation cannot be regarded as an officer or a person having any duty to perform in connection with the sale. He acted as a Panch because he happened to be selected as a Panch. If he had not been selected as a Panch he would not have acted as a Panch. He had no duty to perform in connection with the sale. There is no duty on the Court to make a Panchnama as to the valuation of the property. The contention is, therefore, rejected.

4. The next contention is that after the original decree was passed, an application was given by the judgment-debtor under Section 24 of the Bombay Money Lenders Act for payment of decretal amount by instalments, and accordingly the Court which passed the decree allowed the decretal amount to be paid by instalments. Section 24 of the Bombay Money Lenders Act reads as follows :

"Notwithstanding anything contained in the Code of Civil Procedure, 1908, the Court may at any time on application of a judgment-debtor after notice to the decree-holder, direct that the amount of any decree-passed against him, whether before or after the date on which this Act comes into force, in respect of a loan shall be paid in such number of instalments and subject to such conditions, and payable on such dates as, having regard to the circumstances of the judgment-debtor and the amount of the decree, it considers fit."

It is, therefore, contended that the decree should have been amended, and that unless the decree is amended, it cannot be executed after the decretal amount is ordered to be paid in instalments. Reliance is placed on Bilimoria. v. Central Bank of India, AIR 1943 Nag 340 (FB). But in the Nagpur case, instalments were not granted. Any observations that were made in the Nagpur case have therefore to be read along with the fact that the instalments were not granted in that case. Whatever observations have been made in that case cannot be applicable to a case where instalments are granted. Section 24 of the Money Lenders Act does not talk of an amendment of a decree before it can be executed. There is, therefore, no merit in the contention that the decree as such should be amended. It is true that the decree should be read with the order passed under Section 24 of the Money Lenders Act. But, admittedly in this case there has been a default in the fulfilment of the terms of the order regarding instalments and what is being executed is the original decree as read along with the subsequent order for instalments what is being executed is not the original decree de-hors, the order for instalments. There is therefore no merit in this contention.

5. The last contention is that the property is worth Rs. 75000/- and that in the proclamation the value is stated as about Rs. 25,000/-. It is, therefore, contended that the property has been inadequatel

Click Here to Read the rest of this document