Judgment sc-1990-1-25-28

F The Judgment of the Court was delivered by

K. RAMASWAMY, J. 1. Heard learned counsel for both sides · and special leave is granted.

2Copy pinpoint2. This appeal by the auction-purchaser is against the judgment G 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: y

3Copy pinpoint3. 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 H of the Civil Judge, Jhalawar, obtained in another suit, an ex·parte

B. LAL v. SMT. PREM LATA [K. RAMASWAMY, J.] 27

money decree to recover Rs.5,557.10 against Bal Mukund and brought A to sale the joint family house which is the disputed property in the present litigation. Mohanlal, his minor son and his widow filed objec- tions 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. B

4Copy pinpoint4. 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 restitution 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 c Respondents Nos. 2 to 4 were not brought on record by substitution. When execution was levied for restitution, though the appellant raised J. several objectios to its executability but c~alleng_e 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 D 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 secondly, the decree being a declaratory one was incapable of execution, notwithstanding the direc- tion for restitution of the plaint scheduled property. The Executing Court dismissed the objection petition, but on appeal the order of the E Executing Court was reversed. On further appeal the High Court allowed the same, set aside the appellate order and directed the appel- late court to transfer it to the appropriate Civil Court for execution as per law. As against it the present appeal has been filed.

5Copy pinpoint5. The contention that the decree passed by the District Judge, F 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 opera- tion 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 Ks.15,000. But this is a G suit laid under Order 21 Rule 63 CPC to set aside the sale by declaring the d_ecree of Rs.5,557.10 to be Jnvalid and does not bind them. In Radha Kun war v. Reoti Singh, AIR 1916 PC 18 and Phu/ 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- H

28 SUPREME COURT REPORTS [1990] 1 S.C.R.

A 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 valua- tion. 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 B nullity.

6Copy pinpoint6. 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 admittedly 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.

7Copy pinpoint7. To a question put by the Court whether in view of the long pendency of the proceed.ings it ccmld not be equitable that the appel- J. !ant should pay the proper value of the house or deliver possession thereof, the learned counsel for the appellant fairly stated that what- ever amount be fixed by this Court, the appellant is prepared to pay the same. The learned counsel for the respondents on the other hand relying 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 B that amount. On the other hand, the appellant having been in posses- sion and enjoyment of the property, the respondents are entitled to the mesne profits. On the facts and in the circumstances and in consid- eration of the fact that the litigation is pending for a long period, we. are of the view thaf 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. In case the appellant fails to pay the value of the property assessed by the District Court as directed above, there shall ·y 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. H P.S.S. Appeal allowed.