SITABAI RAMBHAU MARATHE Vs. GANGADHAR DHANRAM MARWADI
LAWS(BOM)-1935-1-3
HIGH COURT OF BOMBAY
Decided on January 18,1935

SITABAI RAMBHAU MARATHE Appellant
VERSUS
GANGADHAR DHANRAM MARWADI Respondents

JUDGEMENT

Rangnekar, J. - (1.) THE appellant challenges a sale of her property by the Court in execution of a mortgage-decree against her in favour of respondent No.2, on two grounds, the first ground being, that, pending the execution, the judgment-creditor had no subsisting interest left in him to continue the execution proceedings by reason of his having assigned the decree in favour of one Mr. Deshmukh, his pleader. THE second ground, on which the sale is impeached, is, that there was a material irregularity in publishing the sale, that the value of the property was hot fairly and accurately stated in the proclamation issued by the Court, and that it has resulted in a substantial injury to her.
(2.) A few dates, which are material in this case, may now be stated. The darkhast for sale in the execution of the decree was filed in March, 1931 ; and the judgment-creditor stated therein that the property mortgaged, which consisted of a house having four storeys, situate in a prominent locality in Jalgaon, was worth Rs. 9,000. The judgment-debtor, now the appellant, objected to the valuation ; and, at her instance, the Court directed a panchnama to be made. The panchas valued the property at Rs. 25,000. This was challenged, in turn, by the judgment-creditor; and so the Court, very properly, ordered another panchnama, which resulted in the value being shown at Rs. 15,400. The first panchnama was made on August 9, 1931, and the second on September 7, 1931. As a matter of fact, in regard to this second panchnama, it appears that the panchas differed as between themselves,-one valued at Rs. 21,000 ; the other at 18,000 ; and the third at 13,000 ;-but they agreed that the average should be taken, and that the value of the property should be taken at Rs. 15,400. Between the dates of the panchnama, the decree-holder assigned the decree to Mr. Deshmukh ; and, it is clear from the deed of assignment, that the judgment-creditor reserved to himself the right to execute the decree, which he had assigned, and that the assignee was entitled to the monies realized in the execution proceedings. The assignee also had the option to continue the execution proceedings then pending. The assignee, however, took no steps to bring himself on record after the assignment, and the judgment-creditor was allowed to continue the proceedings in execution. The record is not clear as to when the proclamation was issued ; nor have the learned advocates been able to satisfy us about the date of the proclamation. But, it is "clear from such materials as we have that one proclamation was issued by the Court, under Order XXI, Rule 66, Civil Procedure Code, between these two dates ; and, either the date of the sale mentioned therein was extended to December 7, 1931, or, what appears to me from exhibit 19, a fresh proclamation was issued on October 31, 1931. In this proclamation, the value of the house was put down at Rs. 9,000. The sale was held on March 31, 1932 ; and, on April 1, 1932, it resulted in a sale for Rs. 9,700, in favour of respondent No.1. What happened afterwards is really not material to the points arising in this appeal. Upon these facts, the appellant contends, first, that the judgment-creditor was not entitled to continue the darkhast, and the sale, therefore, is void and must be set aside ; and, secondly, that the learned Judge acted arbitrarily in this matter and was not justified in putting, in the proclamation, the value of the property at the figure mentioned by the judgment-creditor, and that this amounts to a material irregularity in publishing the sale, which has caused her substantial injury. As regards the first point, the position seems to me to be clear. In the. first place, Order XXI, Rule 16, Civil Procedure Code, does not compel the assignee to come' forward and have himself substituted on the record in place of the judgment-creditor. It gives him an option to do so; he has a right to bring himself on record if lie wants to see that his rights
(3.) RE enforced, but he is not bound to do so. And the darkhast, which is REgularly filed by the holder of the decREe, cannot come to an end because, pending execution, the judgment-cREditor has assigned his inteREst in favour of another person, It is well established by decisions of this Court, that an assignee does not become a holder of the decREe within the meaning of Order XXI, Rule 16, and Section 2 of the Civil ProceduRE Code, unless he applies to the Court to bring himself on REcord in place of the judgment-cREditor. I need only mention the authorities. They aRE : Jasoda Deye v. Kirtibash Das (1891) I. L. R. 18 Cal 639; Harnand Raiphul Chand v. Rup Chand Chiranji Lal (1933) I. L. R. 14 Lah. 744; Co-operative Town Bank of Padigon v. S. V. K. V. Raman Chettyar (1926) I. L. R. 4 Rang. 426; and Monmotho Nath Mitter v. Rakhal Chandra Ternary (1909) 10 C. L. J. 396. The second contention, however, seems to us to be substantial. Order XXI,. Rule 66, Civil Procedure Code, makes it obligatory on the part of the Court to issue a proclamation. Sub-section (2), clause (e), provides that (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value of the property.;


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