Patna High Court
Sukhdeo Gond vs Brahmdeo Tewari And Ors. on 29 November, 1956
Equivalent citations: 1957(5)BLJR45, AIR 1957 PATNA 431
Author: Chief Justice
Bench: Chief Justice
JUDGMENT
1. The question at issue in this appeal is whether the sale of certain properties held on the 15th September 1939, in an execution case was a nullity and without jurisdiction because no notice was issued or served against the judgment-debtor under the provisions of Order 21, Rule 22, Code of Civil Procedure.
2. The case of the plaintiff appellant is that no notice under O, 21, Rule 22, Code of Civil Procedure, was issued at the instance of the decree-holder. It appears that Ramjanam Mallah, the respondent, had obtained a decree against Sukhdeo Gond and his two son's. Ramjanam Mallah put the decree in execution and it appears from the order sheet that he made a prayer that notice under Order 21, Rule 22, and attachment should issue simultaneously. The executing Court, however, ordered that notice "under Order 21, Rule 22, need not be issued and only attachment should be issued.
Later on the appellant Sukhdeo Gond appeared in the execution case and filed objection under Section 60, Code of Civil Procedure, and Ss. 13, 14 and 15 of the Money-tenders Act. The parties adduced evidence in the matter and the executing Court released two plots under attachment and sale as prayed for by the appellant Sukhdeo Gond, but the other lands were sold on the 15th of September 1939. The argument addressed by learned counsel on behalf of the appellant is that the auction sale which took place on the 15th of September 1939, was a nullity, because there was no notice served upon the judgment-debtor under Order 21, Rule 22, Code of Civil Procedure.
We do net think that the argument put forward by learned counsel for the appellant is well founded. Our view is supported by a decision of this High Court in Balmakund v. Firm Pirthiraj Ganesh Das, AIR 1951 Pat 333 (A), where also there was a sale in an execution case and the point was taken on behalf of the judgment-debtor that the sale was a nullity because no notice under Order 21, Rule 22, Code of Civil Procedure, had been issued. It appears that there was a proceeding under Order 21, Rule 90, made on behalf of the judgment-debtor in that case and there was no objection taken in that case about the non-issue of notice under Order 21, Rule 22. It was held by the learned Judges constituting the Division Bench that there was no lack of jurisdiction in the executing Court in the circumstances appearing in that case. The reason was that the judgment-debtor had knowledge of the execution proceeding and put forward all possible objections for defeating the execution case. In the course of the judgment, Narayan, J., referred to the following observations of Kulwant Sahay, J., in Fakhrul Islam v. Bhubaneshwari Kuar, ILR 7 Pat 790: (AIR 1929 Pat 79) (B):--
"All that Order 21, Rule 22, requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed."
"In my judgment, that is the substance and the meaning of the requirement. I do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice does not in substance get notice and is not given or does not take an opportunity to object to the execution of the decree, the sale which follows will be without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed. I have pointed out that, at one stage of the case, the matter was by agreement referred to a gentleman to report as to the amount of the valuation to be inserted in the proclamation of sale.
In the appeal which came previously before this Court, there was an affirmation that the sale was to take place and the proclamation was to issue. It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the Court because they have not got a formal notice to do something, namely, to dispute the execution of the decree, when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years. I decline to push the doctrine so far as that and it seems to me that the execution should proceed."
It is also relevant to make a reference to the observation of Das, J., in a Full Bench case in Ramlal Sahu v. Mt. Ramia, ILR 26 Pat 340: (AIR 1947 Pat 454) (C). At pp. 351-52 (of ILR Pat): (at p. 459 of AIR), Das, J., said:--
"It is no doubt the duty of every Court to see that a notice issued by it is served in the manner required by law. This, however, is not a matter of jurisdiction; it is a matter between the Court and its officers. If there is any irregularity of service, the person aggrieved is not without remedy and it cannot be said that the object of the rule is frustrated, The person affected by the irregularity may apply for setting aside the sale by taking appropriate proceedings within the time allowed by law. There may be a case where the party entitled to a notice under Order 21, Rule 22, comes to know of the execution and appears to contest it in spite of a defect in the method of service.
Can it be said in such a case that the object of the rule is, frustrated and that the notice must again be served properly? As Rankin, C.J., had observed in Chandranath Bagchi v. Nabadwip Chandra, 35 Cal WN 9: (AIR 1931 Cal 476) (D), to hold so would be 'to push the abstract logic of the case of Raghunath Das v. Sundar Das Khetri, 41 Ind App 251: (AIR .1914 PC 129) (E), to the ridiculous extreme', and would be 'piling unreason upon technicality'.'' Counsel for the appellant referred to the decision of the Privy Council in 41 Ind App 251: (AIR 1914 PC 129) (E), and the decisions in Ajablal v. Haricharan, ILR 23 Pat 528: (AIR 1945 Pat 1) (FB) (F), Shivasahai v. Sundarmandal, ILR 26 Pat 15: (AIR 1948 Pat 91) (G) and Mazharul Haq v. Raghuber Singh, ILR 18 Pat 761: (AIR 1940 Pat 142) (H). But all these cases are distinguishable from the present case where the judgment-debtor did appear in the course of the execution proceeding, raised objections to the execution proceeding and succeeded in his attempt in persuading the Court to release some of the properties from attachment and sale. It is also import-ant to notice that Order 21, Rule 22, as it stood after the amendment of Sub-rule (1) by the Patna High Court made on the 1st of April 1936, was as follows:--
"(1) Where an application for execution is made in writing under Rule 11 (2) the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, and a date to be fixed, why the decree should not be executed against him.
(2) Nothing in the foregoing sub-rule shall be deemed to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice."
The original Sub-rule (1) of Rule 22 was as follows:--
"(1) where an application for execution is made-
(a) more than, one year after the date of the decree, or,
(b) against the legal representative of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him: Provided that no such notice shall be necessary in consequence of more than one year having elapsed between the date of the decree and the application for execution if the application is made within one year from the date of the last order against the party against whom execution is applied for, made on any previous application for execution, or in consequence of the application being made against the legal representative of the judgment-debtor, if upon a previous application for execution against the same person the Court has ordered execution to issue against him."
In view of amended Sub-rule (1) of Order 21, Rule 22, as it stood after the 1st April 1936, it appears to us that the issue of notice under Order 21, Rule 22, Code of Civil Procedure, by the executing Court is not a matter of jurisdiction, because Rule 22, Sub-rule (2), permits the Court in exceptional cases to issue a process in execution of a decree if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. As a matter of construction, of the rule therefore, we think that the issue of a notice under Order 21, Rule 22, under the amended rule after the 1st of April 1936, was not a matter of jurisdiction. In the circumstances of this case, therefore, we hold that there was no lack of jurisdiction on the part of the executing Court and that the sale of the properties which took place on the 15th of September 1939, was not a nullity or without jurisdiction.
3. For these reasons we hold that the decision of the lower appellate Court is right and that this appeal must be dismissed with costs.