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PETITIONER: BHANWAR LAL

       Vs.

RESPONDENT: SMT. PREM LATA & ORS.

DATE OF JUDGMENT12/01/1990

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. MISRA RANGNATH SAWANT, P.B.

CITATION:  1990 AIR  623            1990 SCR  (1)  25  1990 SCC  (1) 353        JT 1990 (1)    26  1990 SCALE  (1)20

ACT:     Code  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.

HEADNOTE:    Under  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 Rs.10,000. Appeals in other cases lie only to the High Court.     In the 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. They, 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.     The 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. Allowing the appeal in part, the Court,     HELD:  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

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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 to.     However, 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]

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of 1990.     From 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.     Guman  Mal  Lodha,  Sushil K. Jain,  B.P.  Aggarwal  and Sudhanshu Atreya for the Appellant. C.M. Lodha and Surya Kant for the Respondents. The Judgment of the Court was delivered by     K. RAMASWAMY, J. 1. Heard learned counsel for both sides and special leave is granted.     2.  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:     3.  S/Shri 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. The respondents filed O.S. No. 37/59 under Order 21 Rule  63 CPC to set aside the sale.     4.  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. When 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

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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.     5. The contention that the decree passed by the District Judge, Kotah, on appeal is a nullity is devoid of substance. It  is  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. In  Radha 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.     6.  The 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 executable.     7. To 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

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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. In 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. P.S.   S                                              Appeal allowed. 29