JUDGMENT

Sulaiman, J. - This is an appeal by the judgment-debtors arising out of proceedings in execution of a simple money decree, dated 11th March 1935, (confirmed on appeal by the High Court on 6th January 1938) for about Rs. 15,000 passed on the basis of two promissory notes dated 6th October 1931, on which date a mortgage deed for Rupees 42,000 was also executed' in favour of the creditor. On 12th September 1938, the judgment-debtors filed an application under Sees. 11 and 16, Bihar Money-lenders Act (Act 3 of 1938), also purporting to be an objection under Section 47, Civil P.C. Their complaint was that in the execution case the properties were attached and sought to be sold "subject to the said mortgage lien". They urged that in view of the provisions of Section 11 of the Bihar Act the amount claimed to be due under the mortgage deed was not in fact due, and so the properties could not be sold subject to that lien, and should therefore be valued free from that lien. The reply, dated 5th November 1938, filed by the decree-holder, was to the effect that inasmuch as Section 16 of the Bihar Act had been declared null and void, no inquiry into the valuation of the properties could be made and the objection should, therefore, be dismissed.

2. The learned Subordinate Judge understood the objection to mean that the value of the properties should be assessed and that it be declared that the mortgage deed, subject to which the decree-holder wanted to sell the same, should be held to have been satisfied on account of the provisions of Section 11, Provincial Act. As regards the validity of Section 16, after pointing out that under Order 21, Rule 17 of the Code in the case of a decree for payment of money the value of the property shall, as nearly as may be, correspond to the amount due under the decree, he held the Section to be void because of the ruling in 19 PLT 760. Vishwanath Narayan v. Harihar Gir (1989) 26 AIR Pat 90 As regards the applicability of Section 11, he held that:

This plea of the judgment-debtors cannot be entertained in these proceedings as the validity or satisfaction of the mortgage bond to which the properties are admittedly subject cannot be a matter for consideration in this execution case. The mortgage encumbrance will be notified as usual, without deciding as to the correctness of the amount said to be due under it.

3. He further pointed out that the judgment-debtors would later be entitled to sue for the redemption of the mortgage and show whether the mortgage money was satisfied or not. Unfortunately the objection and the reply thereto do not make it quite clear whether the sale had been ordered "subject to the mortgage" as contemplated by Order 21, Rule 62, Civil P.C., or whether the previous mortgage had been merely notified as contemplated by Rule 66 of that Order. The learned Counsel for the appellants has, however, conceded that there had been no adjudication under Rule 62. The order of the Subordinate Judge also made it clear that the mortgage was to be merely notified. The judgment-debtors appealed to the High Court and again raised the question of the applicability of Sections 11 and 16, Bihar Act. Section 11 had presumably been invoked for the purpose of getting the true value of the property estimated under See. 16. The High Court felt bound by its two previous decisions holding that these Sections were void, and summarily dismissed the appeal.

4. As regards the applicability of Section 16, I expressed the view in 1939 FCR 193 Shyamakant Lal v. Rambhajan Singh (1939) 26 AIR FC 74 which had turned solely on that Section, that the order of the High Court relating to it was not a final order within the meaning of Section 205(1), Government of India Act. As in that case the new Act, of which the appellants wanted to take advantage in the appeal instead of relying upon it later in the first Court, had come into force after the appeal had been filed. I preferred to base my conclusions both on the ground t