Holding

The value of the amount of decree, not the property valuation, determines jurisdiction under Section 21(1)(a), and a decree coupled with a restitution direction is executable.

Summary

A joint family house was auctioned to satisfy an ex‑parte money decree of Rs 5,557.10. The coparceners objected, the sale was confirmed, and they filed a suit under Order 21 Rule 63 CPC to set aside the sale, valuing the property at Rs 15,000. The trial court dismissed the suit, but the District Court allowed the appeal and decreed restitution of the house. The purchaser‑appellant contended that the District Court lacked pecuniary jurisdiction under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950, because the suit was valued at Rs 15,000, and that the decree was merely declaratory and could not be executed. The Supreme Court held that for jurisdictional purposes the value of the suit is the amount of the decree (Rs 5,557.10), not the property valuation, so Section 21(1)(a) applied, but the decree was not a nullity and, being coupled with a restitution direction, was executable. The Court directed the District Court to assess the current market value of the house and ordered the appellant to pay that amount, allowing the appeal without costs.

Issues considered

The correct valuation for determining pecuniary jurisdiction of the District Court under Section 21(1)(a) of the Rajasthan Civil Courts Ordinance, 1950 in a suit under Order 21 Rule 63 CPC.
Whether a decree that declares a sale void and includes a direction for restitution is merely declaratory and therefore inexecutory.

Legislation cited

Code of Civil Procedure, 1908s. Order 21 Rule 58, s. Order 21 Rule 63
Rajasthan Civil Courts Ordinance, 1950s. Section 21(1)(a), s. Section 21(1)(b)

Subjects

pecuniary jurisdictionexecution of decreerestitution of propertyOrder 21 CPCRajasthan Civil Courts Ordinanceauction salevaluationappellate jurisdiction

Judgment

BHANWAR LAL
A
v.
-:-\; SMT. PREM LATA & ORS.

JANUARY 12, 1990

\ [RANGANATH MISRA, P.B. SAWANT AND
K. RAMASWAMY, JJ.]
B

~ Code of Civil Procedure, 1908: Order 21Rule63/Rajasthan Civil
Courts Ordinance, 1950: Section 21( l)(a)-Suit to set aside sale-
Appellate court decreeing restitution of property-Validity of-Value
of decree-Whether value for purpose of suit.
c
"""" Under ~ection 2l(l)(a) of the Rajasthan Civil Conrts 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.
D
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 objections under Order 21 Rule 58 CPC,
which were rejected. The sale was confirmed in 1958 and the sale
I 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 E
execution was put at Rs.15,000.

-"4. The trial court dismissed the suit. The District Court, however,
(
allowed the appeal and decreed the suit for restitution of the property
-t since possession had in the meantime been taken. The appellant auction-
purchaser raised objections to the execution on the ground that the said F
"'-'! 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 2l(l)(a) of the <;>rdiuance, and that the decree being a
declaratory one was incapable of execution. The executing court dismis-
sed the objection petition but on appeal the order was reversed. On
furjher appeal, the High Court set aside the appellate order. G

Allowing the appeal in part, the Court,
'y
HELD: The value of the amount of decree would be the value for
the purpose of the suit under Order 21Rule63 CPC. In the instant case,
the suit was laid to set aside the sale by declaring the decree of H
25
26 SUPREME COURT REPORTS [1990] I S.C.R.

A 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 2l(l)(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 wa•; a nullity. Since, it was not a mere
B declaratory decree but coupled with a decree for restitution of the pro-
perty, the plaintiff was entitled to execution. [27G-28A, 28C]
-~
Radha Kunwar v. Reoti Singh, AIR 1916 PC 18 and Phu/ Kumar
v. Ghanshyam Mishra, 35 IA 22 PC, referred to. •

However, in view of the fact that litigation was pending for a long
c period, it wonld 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. [280, Fl
D
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 81 of
1990.

From the Judgment and Order dated 7.3.1989 of the Rajasthan
High Court in S.B. Civil (Misc.) Second Appeal No. 2 of 1976. \.
E
Guman Mal Lodha, Sushi! K. Jain, B.P. Aggarwal and
Sudhanshu Atreya for the Appellant.

C.M. Lodha and Surya Kant for the Respondents.

F 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
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
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
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

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 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.

5. 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.
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
C 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.
7. 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
D 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
F 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
G 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.