Lal Vs. Smt. Prem Lata & Ors  INSC 6 (12 January 1990)
K. Ramaswamy, K. Misra Rangnath Sawant, P.B.
1990 AIR 623 1990 SCR (1) 25 1990 SCC (1) 353 JT 1990 (1) 26 1990 SCALE (1)20
of Civil Procedure, 1908: Order 21 Rule 63/Rajas- than Civil Courts Ordinance,
1950: Section 21(1)(a)--Suit to set aside sale-Appellate court decreeing
restitution of property--Validity of--Value of decree--Whether value for
purpose of suit.
Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950 the District
Court is empowered to entertain an appeal from a decree of the value of only upto
in other cases lie only to the High Court.
instant case, a joint family house was brought to auction in satisfaction of an
ex-parte money decree to recover Rs.5,557.10. The respondent coparceners filed objec-
tions under Order 21 Rule 58 CPC, which were rejected. The sale was confirmed
in 1958 and the sale certificate issued.
thereupon, filed a suit under Order 21 Rule 63 CPC to set aside the sale, in
which the valuation of the property sold in execution was put at Rs.15,000.
trial court dismissed the suit. The District Court, however, allowed the appeal
and decreed the suit for resti- tution of the property since possession had in
the meantime been taken. The appellant auctionpurchaser raised objections to
the execution on the ground that the said decree was a nullity as the District
Court lacked pecuniary jurisdiction to entertain the appeal against the decree
in the suit valued at Rs.15,000 under Section 21(1)(a) of the Ordinance, and
that the decree being a declaratory one was incapable of execution. The
executing court dismissed the objection petition but on appeal the order was
reversed. On further appeal, the High Court set aside the appellate order.
the appeal in part, the Court,
The value of the amount of decree would be the value for the purpose of the
suit under Order 21 Rule 63 CPC. In the instant case, the suit was laid to set
aside the sale by declaring the decree of 26 Rs.5,557.10 to be invalid. Merely
because the valuation of the property sold in execution had been put at Rs.15,000
the valuation of the suit under Order 21 Rule 63 CPC could not be treated to be
that valuation. Accordingly, Section 21(1)(a) of the Ordinance was attracted.
It could not, therefore, be said that the decree passed by the District Court
for restitution of the property was a nullity. Since, it was not a mere
declaratory decree but coupled with a decree for restitution of the property,
the plaintiff was entitled to execution. [27G-28A, 28C] Radha Kunwar v. Reoti
Singh, AIR 1916 PC 18 and Phul Kumar v. Ghanshyam Mishra, 35 IA 22 PC, referred
in view of the fact that litigation was pending for a long period, it would be
equitable if the appellant is permitted to pay the proper value of the house.
The District Court is directed to assess the prevailing market value of the
house and the site as on date. The appellant to pay the value thereof within a
time fixed by the District Court. [28D, F]
APPELLATE JURISDICTION: Civil Appeal No. 81 of 1990.
the Judgment and Order dated 7.3.1989 of the Rajas- than High Court in S.B.
Civil (Misc.) Second Appeal No. 2 of 1976.
Mal Lodha, Sushil K. Jain, B.P. Aggarwal and Sudhanshu Atreya for the
and Surya Kant for the Respondents.
Judgment of the Court was delivered by K. RAMASWAMY, J. 1. Heard learned
counsel for both sides and special leave is granted.
This appeal by the auction-purchaser is against the judgment of the High Court
of Rajasthan, Jaipur Bench, dated March 7, 1989 made in S.B. Civil (Misc.) Second Appeal No. 2/76. The
facts, though many, relevant to dispose of the appeal are stated as under:
Gokulchand and Rekhchand, Respondents Nos. 5 and 6 herein, defendants 2 and 3
in O.S. No. 37/59 on the file of the Court of the Civil Judge, Jhalawar,
obtained in another suit, an ex-parte 27 money decree to recover Rs.5,557.10
against Bal Mukund and brought to sale the joint family house which is the
disputed property in the present litigation. Mohanlal, his minor son and his
widow filed objections under Order 21 Rule 58 CPC which were rejected. The sale
was confirmed on October
24, 1958, and sale
certificate was issued on November 28, 1958.
respondents filed O.S. No. 37/59 under Order 21 Rule 63 CPC to set aside the
Trial Court by its judgment dated December 5, 1961 dismissed the suit, but on
appeal, the District Judge at Kotah allowed the appeal and decreed the suit for
resti- tution of the plaint schedule property since possession had in the
meantime, been taken. Second Appeal No. 91/65 filed in the High Court was
abated as a whole since Mohanlal died on May 1, 1968 and his legal representatives being
Respond- ents Nos. 2 to 4 were not brought on record by substitution.
execution was levied for restitution, though the appel- lant raised several
objections to its executability but challenge was confined to two grounds,
namely, the decree passed by the District Judge is a nullity as he lacked
pecuniary jurisdiction to entertain the appeal against the decree in the suit
admittedly valued at Rs.15,000 under Section 21(1)(a) of the Rajasthan Civil
Courts Ordinance 1950, and it was entertainable by the High Court, and sec- ondly,
the decree being a declaratory one was incapable of execution, notwithstanding
the direction for restitution of the plaint scheduled property. The Executing Court dismissed the objection petition,
but on appeal the order of the Executing Court
was reversed. On further appeal the High Court allowed the same, set aside the
appellate order and directed the appellate court to transfer it to the appropri-
ate Civil Court for execution as per law. As
against it the present appeal has been filed.
contention that the decree passed by the District Judge, Kotah, on appeal is a
nullity is devoid of substance.
true that under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance 1950,
the District Court is empowered to entertain an appeal against the decree of a
Trial Court of the value only upto Rs.10,000 and by operation of sub- section
(b) of s. 21(1) the appeal would lie only to the High Court as the value of the
suit was admittedly Rs.15,000. But this is a suit laid under Order 21 Rule 63
CPC to set aside the sale by declaring the decree of Rs.5,557.10 to be invalid
and does not bind them.
Kunwar v. Reoti Singh, AIR 19 16 PC 18 and Phul Kumar v. Ghanshyam Mishra, 35
IA 22 PC it was held that the value of the amount of decree is the value for
the purpose of the suit under Order 21 Rule 63 CPC. Therefore, merely because
the valuation of the pro- 28 perty sold in execution had been put at Rs.15,000,
the valuation of the suit under Order 21 Rule 63 CPC cannot be treated to be
that valuation. Accordingly, we hold that Section 21(1)(a) of the Ordinance is
attracted. Therefore, the decree of the Appellate Court in C.A. No. 157/61 on
the file of the Court of the District Judge, Kotah, is not a nullity.
only other question is whether the plaintiff is entitled to restitution of the
property. Once the decree which was the subject matter of execution was
declared to be not binding on the plaintiffs, Mohanlal and his mother Bhuli Bai,
the execution sale would not bind them and as a result they became entitled to
restitution. The decree does admit- tedly contain a direction for restitution.
Therefore, it is not a mere declaratory decree but coupled with a decree for
restitution of the plaint scheduled house. Accordingly, the decree is
a question put by the Court whether in view of the long pendency of the
proceedings it could not be equitable that the appellant should pay the proper
value of the house or deliver possession thereof, the learned counsel for the
appellant fairly stated that whatever amount be fixed by this Court, the
appellant is prepared to pay the same. The learned counsel for the respondents
on the other hand rely- ing upon the statement made in the objections dated
April 28, 1973, filed by the appellant maintained that he had then claimed only
a sum of Rs.11,900 in all, and the appellant would be entitled only for that
amount. On the other hand, the appellant having been in possession and
enjoyment of the property, the respondents are entitled to the mesene prof-
its. On the facts and in the circumstances and in considera- tion of the fact
that the litigation is pending for a long period, we are of the view that
justice and equity would be met if we direct the District Court, Kotah, to
assess the prevailing market value of the plaint scheduled house and the site
as on date and direct the appellant to pay the value thereof within a time to
be fixed by him. If the respondents have not drawn the balance of the sale
amount in the original suit filed by S/Shri Gokulchand and Rekhchand and after
full satisfaction was recorded, the appellant is entitled to withdraw the said
balance amount. In case the amount was already withdrawn, the appellant is
entitled to deduct the same from the amount fixed by the District Court.
case the appellant fails to pay the value of the property assessed by the
District Court as directed above, there shall be a direction for restitution of
the plaint scheduled property as per the decree of the Appellate Court in C.A. No. 157/61. The appeal is accordingly allowed, but,
in the circumstances, without costs.