Patna High Court
Balmakund vs Firm Pirthiraj Ganesh Das on 21 February, 1950
Equivalent citations: AIR1951PAT333, AIR 1951 PATNA 333
JUDGMENT
Narayan J.
1. This is a plaintiff's appeal arising out of a suit in which a declaration was sought that the execution sale of the properties which are the subject-matter of the suit was null and void and that the defendant firm had acquired no title to them by virtue of the purchase at the court sale. There was also a prayer for recovery of possession of the properties in question in case the plaintiff was found to be out of possession. The decree in execution of which the properties were sold had been obtained by the firm Pirthiraj Ganesh Das (the respondent in this appeal) against the firm Ganpatrai Balabux in Suit No. 56 of 1926 of the Original Side of the Calcutta High Court, and on leave having been obtained from that Court, according to the provisions of Sub-rule (2) of Rule 50 of Order 21, Civil P.C., and on the decree having been transferred to the Ranchi Court, it was executed in that Court against the appellant, and the properties in suit were sold on 3-9-1936 and purchased by the respondent firm who were the decree-holders. Thereafter this appellant filed an application under Order 21, Rule 90, Civil P. C., for setting aside the sale, but his application was dismissed after contest by the respondent. He then instituted the suit out of which this appeal arises and sought to impugn the sale on various grounds.
2. The defendant firm resisted the plaintiff's claim and contended that the sale at which they had purchased the properties was a valid sale and that the present suit was barred according to the provisions of Order 21, Rule 92 (3), Civil P, C.
3. The appellant in this Court was constrained to abandon the several contentions which he had pressed with vehemence in the Court below, and his counsel confined his argument only to the following two points : (1) That there was no decree against this appellant at all and his separate properties could not, therefore, be sold in execution of that decree; and (2) that the executing Court had no jurisdiction to sell the properties in question, because no notice had been issued by it according to the provisions of Order 21, Rule 22, Civil P. C.
4. Before I give my finding on the two issues canvassed in this Court, it is necessary to state some more facts. The decree that had been passed by the High Court of Calcutta had been transferred to the Ranchi Court for execution and the first application for execution had been filed some time in the year 1928. In that execution case, which was Ex. case No. 80 of 1928, the decree-holders sought to execute the decree against this appellant as a partner of the Judgment-debtor firm. The appellant appeared in that execution case and filed an objection which was registered as an objection under Section 47, Civil P. C. That execution case was, however, dismissed on 4-1-1932, and along with the execution case the objection case was also dismissed without adjudication. While these execution and miscellaneous cases were pending in the Ranchi Court, this appellant filed a title suit in the High Court of Calcutta to set aside the ex parte decree that had been passed in 1926. It appears that this suit was dismissed according to the provisions of Order 9 Rule 8, Civil P. C., and an application for rehearing filed by this appellant according to the provisions of Order 9 Rule 9, Civil P. C, was also dismissed Thereafter, an application was filed by the decree-holder firm for leave to execute the decree against this appellant under the provisions of Order 21, Rule 50 (2), Civil P. C., and leave was granted. The appellant then moved the Court for revoking the order granting the leave, but his application was dismissed. In September 1934 the execution case in which the properties in suit were sold was filed in the Ranchi Court and in this case the appellant filed a petition of objection under Section 47, Civil P. C. This application was disposed of by the learned Subordinate Judge after a keen contest by the decree holder, and the Judgment of the learned Subordinate Judge is EX. A in this case. All the contentions raised by this appellant were rejected by the learned Subordinate Judge, and-the execution case proceeded with the result that the properties in suit were sold on 3-9-1936. After the sale of the properties the appellant filed an application under Order 21, Rule 90, Civil P. C., which was dismissed on 14-6-1938 after contest by the decree-holder-auction-purchaser. The suit out of which this appeal arises was filed on 15-1-1944, and naturally one of the most important pleas taken up by the defendant was that the suit was not maintainable in view of the bar provided by Rule 92 of Order 21, Civil P. C.
5. In my opinion, there is no substance in the contention of this appellant that there was no decree against him which could be executed in Ex. case no. 61 of 1934 in which his properties were sold. Order 30, Civil P. C., contains the provisions according to which suits by or against firms can be prosecuted, and Rule 3 of Order 30 lays down that where persons are sued as partners in the name of their firm, the summons shall be served either upon any one or more of the partners, or at the principal place at which the partnership business is carried on within British India upon any person having, at the time of service, the control or management of the partnership business there. The provisions for the execution of a decree passed against a firm are contained in Rule 50 of Order 21, Civil P. C. According to Sub-rule (1) (c) execution may be granted against any person who has been individually served as a partner with a summons and has failed to appear. There are two Sub-rules under Rule 50 and they are in the following terms:
Sub-rule (2)--"Where the decree-holder claims to be entitled to cause the decree to be executed against any person other than such a person as is referred to in Sub-rule (1), Clauses. (b) and(c), as being a partner in the firm, he may apply to the Court which passed the decree for leave, and where the liability is not disputed, such Court may grant such leave, or, where such liability is disputed, may order that the liability of such person be tried and determined in any manner in which any issue in a suit may be tried and determined."
Sub-rule (3)--"Where the liability of any person has been tried and determined under Sub-rule (2), the order made thereon shall have the same force and be subject to the same conditions as to appeal or otherwise as if it were a decree."
As already pointed out, it is common ground that leave had been granted for executing the decree against this appellant, and after the leave had been granted the appellant made an application to the Court for revoking the order granting the leave. This application was dismissed and the decree was consequently executed against this appellant as a partner of the firm. If the appellant had made an application for revoking the order granting the leave and that application was rejected on its merits, then it is not open to him now to contend that there was no decree against him and that the execution sale has not conveyed any title to the auction-purchaser with regard to the properties in suit. The simple fact that leave as contemplated by Sub-rule (2) had been granted and the application of the appellant for revoking the leave had been refused is sufficient to dispose of the first contention raised by the appellant before us. In this connection it is also important to note that in none of the proceedings up till now this appellant bag seriously urged that he is not a partner of the firm against which the decree executed in Ex. case No. 61 of 1934 had been obtained. It is admitted that though he instituted a suit in the year 1931 for setting aside the decree, even in the plaint of that suit be did not urge that he was not a partner of the firm. It will appear from a perusal of the Judgment, Ex. A, which is the Judgment passed in the miscellaneous case under Section 47, Civil P. C., that even in the objection which the appellant had filed in the previous execution case, namely, Exn. case No. 80 of 1928, he did not urge that he was not a partner of the firm Ganpatrai Balabux. The learned Subordinate Judge after a lengthy disscussion came to the conclusion that even in Misc. Case No. 1 of 1935 which the Judgment debtor had filed in Exn. case no. 61 of 1934, he considered himself to be a partner of the firm. The learned Subordinate Judge has observed as follows :
"However the discussions above show that objector still considers he is entitled to share in the Judgment-debtor firm and as such, for the purpose of this case at least, he is a partner of that firm."
It is no less important that neither in the plaint of this suit nor in the grounds of this present appeal the appellant has urged that he is not a partner of the firm Ganpatrai Balubux. There is, therefore, no merit in the contention that there was no decree against this appellant which could be executed against him, and in execution of which his properties could be sold.
6. Admittedly, the appellant had filed an application under Order 21, Rule 90, Civil P. C. after the sale of his properties, and his application was considered on its merits and dismissed on 11-6-1938. Sub-rule (3) of Order 21 Rule 92, lays down that no suit to set aside an order made under this rule shall be brought by any person against whom such order is made. The present suit is, therefore, not competent unless the appellant is able to show that the executing Court had no jurisdiction to sell the properties and that the sale is a nullity. It is, therefore, that the appellant has raised the contention that the sale is without jurisdiction because no notice under Order 21, Rule 22, Civil P. C., was issued by the executing Court. It is, of course, common ground that no notice under Order 21, Rule 22, had been issued, though according to Sub-rule (1) of Rule 22 of Order 21, it was necessary for the Court to issue a notice to the person against whom execution had been applied for requiring him to show cause why the decree should not be executed against him. The question, therefore, arises whether in the absence of the notice the Court had jurisdiction to sell the properties of this appellant. A Full Bench of this Court held in Ajablal v. Haricharan, 23 Pat. 528 : (A. I. R. (32) 1945 Pat. 1 F. B.) that a sale held in execution of a mortgage decree after the death of the Judgment-debtor but after the service of all the necessary processes, including the sale proclamation, without any notice to his legal representative is void in the sense that it is not valid against the legal representative. Chatterji J., Meredith J. (as he then was), and Sinha J. constituted the Pull Bench. Chatterji J. expressed his views in the following terms :
"I must observe that the word 'void' when used with reference to a sale, is not always used in the same sense. A sale may be void in the sense that it is a complete nullity, in which case the purchaser acquires no title at all, even against a trespasser. Again a sale may be void in the sense that it is not valid and operative against some particular parson, in which case the purchaser requires no valid title against that particular person, though he may acquire a title quite good and effective against a trespasser. A sale held without issue of notice under Order 21, Rule 22 is a void sale of the latter class as will appear from the following observation of Sir George Rankin C. J. in Chandra Nath v. Nabadwip Chandra, 35 Cal. W. N. 9 : (A. I. R. (18) 1931 Cal. 476), already cited, '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.' A sale of this class is called a 'void sale' as distinguished from a 'voidable sale' which means that the sale is valid and binding against the particular person concerned, unless and until it Is set aside by him in an appropriate proceeding. It will be noticed that In all those cases, cited above, in which the sale was held to be void for want of notice under Order 21, Rule 22 the question arose between the suction-purchaser or persons deriving title from him on the one hand and the Judgment-debtor or his legal representative on the other. In this connection it will not be out of place to refer to the analogy of a sale in execution of a mortgage decree to which a subsequent transferee is not a party. The sale, though 'Otherwise effective, is not valid and operative against the subsequent transferee. It is not void in the tense that it is a complete nullity. Nor is it merely voidable."
Thus, his Lordship was not of the view that a sale without the issue of a notice under Order 21, Rule 22, Civil P. C., is a complete nullity, and he referred with approval to the decision of Rankin C. J., in Chandra Nath v. Nabadwip Chandra Dutt, 35 Cal. W. N. 9 : (A. I. R. (18) 1931 Cal. 476). Because the decision of Rankin C. J. and C. C. Ghose J., has been referred to with approval not only in the Full Bench case of Ajablal v. Haricharan, (23 pat. 528 : A. I. R. (32) 1945 pat. 1 P. B.), but also in a later Pull Bench case Ramlal Sahu v. Mt. Ramia, A. I. R. (34) 1947 pat. 454 : (26 Pat. 340 F. B.), I should like to quote a passage from the Judgment of his Lord-ship, Rankin C. J., and especially because the observation of his Lordship if applied to the facts of this cafe would, to my mind, be conclusive of the point raised before us. Rankin C. J., quoted the following observation of Kulwant Sahay J. in Fakhrul Islam v. Bhubaneshivari Kuer, 7 Pat. 790 : (A. I. R. (16) 1929 pat 79) which ease bad been decided by a Division Bench of this Court:
"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."
And then his Lordship proceeded as follows :
"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."
7. It seems that the Privy Council decision in Raghunath Das v. Sundar Das 41 I. A. 251: (A. I. R. (1) 1914 P. C. 129) had been pressed upon their Lordships of the Calcutta High Court, and it is therefore that Rankin C. J., observed that the abstract logic of the case of Raghunath Das v. Sunder Das, (41 I. A. 251: A. I. R. (1) 1914 P. C. 129) should not be pushed to a ridiculous extreme. As a matter of fact, the following observation of the Judicial Committee in Raghunath Das v. Sunder Das, (41 I. A. 251 : A. I. R. (1) 1914 P. C. 129) leaves no room for doubt in my opinion that the principle laid down by their Lordships cannot be applied to a case where a Judgment-debtor had not only knowledge of the execution proceeding but had litigated actively and put forward all possible objections for defeating the execution case :
"A notice under that section should have called upon the official assignee to show cause why the decree should not be executed against him. Had the official assignee been served with such a notice, it is at least probable that he would, as in their Lordships opinion he certainly could, have shown good cause why the decree should not be executed, the property having under the Act and vesting order been transferred to him for the benefit of the creditors of the insolvent generally. It is possible that the notice might be upheld as a proper notice preliminary to adding the official assignee as a party under Section 32, if that section were applicable, but in order to bind a party added under that section, he has, after being added, to be served with a summons to appear and answer, and it is not suggested that any such summons was served. Similarly, it is sot suggested that any order to carry on proceedings was obtained under Section 372. Having obtained leave in that behalf the respondents proceeded to serve the notice in question, and their Lordships will assume that the notice was duly served on the official assignee. The official assignee took no notice of it, possibly because he had no objection to being substituted as a party, and expected to be served with notice of any further application against him. There is no evidence that he knew that an order for sale had been already made."
This cannot be regarded as a case in which the appellant did not know that an order for sale had been made. A perusal of the Judgment of the learned Subordinate Judge, Ex. A, in the miscellaneous case under Section 47, Civil P. C., will show how actively he contested the decree-holder's claim in the execution proceeding and that he raised all possible objections which could be raised for defeating the decree-holder's claim. But neither in the Section 47- proceeding nor in the proceeding under Order 21, Rule 90, Civil P. C., did he raise the point that the execution case was not maintainable, because no notice under Order 21, Rule 22, had been issued. The Judicial Committee have held in a very recent case, Shivraj Gopalji v. Edappakath Ayisa Bi, A. I. R. (36) 1949 P. C. 302 : (1949-2 M. L. J. 493) that where in an earlier execution proceeding a decree-holder could have raised a plea that the Judgment-debtor; had an interest in certain property which could be attached under his decree but that the plea was not raised through his own default and the execution was dismissed, the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of Section 11, Civil P. C., it should be contrary to the principle to allow him in fresh proceedings to renew the same claim, namely, that the properties in question were properties liable to attachment. If the principle of res judicata is applicable in the case of a decree-holder in such circumstances, it will also be applicable in the case of a Judgment debtor in similar circumstances; and we cannot in this case overlook the provisions of Sub-section (1) of Section 47 which runs as follows:
"All questions arising between the parties to the suit in which the decree wag passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit,"
8. A proceeding under Section 47 can be treated as a suit and a suit can be treated as a proceeding, and because there was a determination under Section 47, Civil P. C., of the objections raised by this appellant, the present suit can be said to be barred and according to the principle laid down by their Lordships if the objection regarding the non-issue of notice under Order 21, Rule 22, Civil P. C., was not raised in Section 47-proceeding, it cannot be raised now. Even if, however, it is open to the appellant to raise this point, the dictum laid down by Rankin C. J. in Chandra Nath Bagchi's case, 35 cal. W. N. 9: (A. I. R. (18) 1931 Cal. 476) referred to with approval in the two Full Bench cases of this Court is a sufficient answer to the contention of the appellant before us that the sale was without jurisdiction, because no notice under Order 21, Rule 22, had been issued. Meredith J. in the case of Ajablal v. Haricharan, 23 Pat. 528: (A.I.R. (32) 1945 Pat. 1 F. B.) went further than Chatterji J. and observed as follows:
"As I read his Judgment (Judgment of Chatterji J.), he is also of opinion that the sale is not a nullity. Ha holds it void merely in the sense that it is not binding upon the legal representative of the Judgment debtor. He suggests it is something that can be validated by confirmation if the legal representative is substituted before that is done. He does not seem to regard it as something that can be attacked collaterally be that any one can treat the purchaser as a trespasser. He holds indeed that not even the Judgment debtor's legal representative can ignore it and eject the purchaser as a trespasser, because the legal representative can only resist the purchaser's possession, or recover possession if he has lost it, by paying up the redemption money.
Definitions of the words 'void' and 'voidable' may differ, and it seems to me the question whether the Bale is to be called void or voidable is consequently not so important. The crucial question is whether it is something that has to be set aside or something that can be ignored. That, to my mind, is equivalent to the question whether it operates or does not operate, unless and until challenged, as a transfer of the title. I have adopted the definition that a 'void sale' is one which can be attacked collaterally as having transferred no title at all to the purchaser, and can be ignored by the Judgment-debtor or his legal representative, or whoever was the owner of the property at the time of the sale;
* * * * My answer to the question referred to the Full Bench is that in none of the circumstances which can arise within the terms of the reference is the sale void in the sense that it can be attacked collaterally or ignored. The sale may, however, be voidable upon a proper application or suit as the case may be."
Sinha, J. agreed with Chatterji J. in answering the question referred to the Full Bench and held that the sale contemplated in the question was void as against the party not before the Court in the sense that it was not valid and operative against him. None of the Judges was thus of the opinion that the sale in the absence of a notice under Order 21, Rule 22, Civil P. C., should be regarded as a complete nullity. In the second Full Bench case in which the provisions of Order 21, Rule 22, came to be considered, the Judgment of the Court was delivered by Das J., and the following observation of his Lordship appears to me to be important for our present purpose :
"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 a 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 proceeding 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 ease that the object of the rule is frustrated and that the notice must again be served properly? As Rankin C. J. had observed in Chandra Nath v. Nabadwip Chandra, 35 C. W. N. 9: (A. I. R. (16) 1931 Cal. 476) to hold so would be 'to push the abstract logic of the case in Raghunath Das v. Sundar Das, 41 I. A. 251: (A. I. R. (1) 1914 P. C. 129) to the ridiculous extreme,' and would be 'piling unreason upon technicality'."
I need not refer to the earlier decisions of this Court or the Calcutta High Court with regard to the provisions contained in Rule 22 of Order 21, Civil P. C., when with the help of these latest decisions the point raised before us can easily be determined.
9. A new sub-rule has now been addled to Rule 22, and the amendment has been notified is the Bihar Gazette, dated 14-5-1947, under Notifn, No. 89-R/XII-6 47, dated 8-5-1947. The new sub-rule is Sub-rule (3) of Rule 22, and it lays down as follows:
"Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under Sub-rule (1) or to record reasons where such notice is dispensed with under Sub-rule (2) unless the Judgment-debtor has sustained substantial injury thereby."
It was, however, contended by the appellant's learned counsel--contention which cannot be regarded as absolutely without substance--that this rule can have no retrospective effect. Certainly, the provisions of a statute cannot be applied retrospectively in the absence of express enactment or necessary intendment. But can it be said about this provision that it relates to an existing right? It is either a provision dealing with matters of procedure or it merely interprets the provisions which already existed, and most probably this sub-rule was added to the existing provision with the intention that the Courts of Justice may not hereafter feel any difficulty in interpreting it. As was pointed out by Khaja Mohamad Noor J., in Sourendra Mohan v. Secy, of State, 14 Pat. 283: (A.I. R. (21) 1934 Pat. 701) :
"It is a well settled principle of law that the Legislature must be taken to be aware of the interpretation of the statute enacted by them by the Courts and if they find that the interpretations by Courts of justice are not in conformity with their intention they should amend it to bring it in conformity with their intention."
The sub-rule merely lays down how the Courts of justice should deal with an objection to the effect that proceedings in execution should be regarded as invalid, because a notice under Order 21, Rule 22, has not been issued, or where while dispensing with the notice the Court has failed to record reasons for not issuing such a notice. The execution proceeding had terminated long ago, and even the application under Order 21, Rule 90, Civil P. C., filed by this appellant was dismissed in June 1938. Because of the bars provided by Section 47 and Order 21, Rule 92, Civil P. C., the present suit was not maintainable, and if in the present. suit the same questions are raised which could have been raised in the proceeding under Section 47, Civil P. C., or in the proceeding under Order 21, Rule 90, I do not think that the new sub-rules which lays down that proceedings shall not be-invalid solely by reason of an omission to issue a notice under Sub-rule (1) should be ignored while determining the question how far the execution proceeding and the sale held in execution of the decree can be held to be invalid As laid down by their Lordships of the Judicial Committee in Delhi Cloth & General Mills-Co. Ltd v. Income tax Commissioners, Delhi, A. I. R. (14) 1927 P. C. 242 : (9 Lah. 284) the provisions of a statute dealing merely with matters of procedure may properly, unless that construction be textually inadmissible, have retrospective effect attributed to them. Not person can have a vested right in a course of procedure, and it is an elementary principle that a plaintiff or a defendant has the right of prosecution or defence in the manner prescribed for the time being, by or for the Court in which he sues, and if there is an Act which alters that mode of procedure, he has no other right than to proceed according to the altered mode. If in spite of being unsuccessful in the proceedings; under Section 47 and Order 21, Rule 90, Civil P. C., this, appellant has now chosen to file a suit which is apparently not maintainable. I do not think, that he can get over the interpretation which has been placed on the provisions of Order 21, Rule 22 by the new sub-rule which, in fact, lays down, as to bow those provisions have to be interpreted in a case in which an execution is challenged as invalid on account of the non-issue of a notice, The general principle certainly is that| alteration in a procedure is retrospective unless there be some good reasons against it. Where a statute is passed for the purpose of supplying an omission in a former statute or for explaining a former statute, the subsequent statute relates back to the time when the prior statute was passed. "Baron Parke", said Lord Hatherley in Pardo v. Bingham, (1869) 4 ch. 735 at, p. 740 : (20 L. T. 464) "did not consider it am invariable rule that a statute could not be retrospective unless so expressed in the very terms of the section which had to be construed and said that the question in each case was whether the Legislature had sufficiently express-ed that intention. In fact, we must look to the general scope and purview of the statute and at the remedy sought to be applied, and consider what was the former state of the law, and what it was that the legislature "contemplated," Certainly, in this case the Legislature contemplated to explain their intention with regard to the provisions contained in Order 21, Rule 22, which had been the subject-matter of interpretation in various cases decided by the High Courts and also by the Judicial Committee. Even if, however, this new sub-rule cannot be said to have retrospective effect, for reasons already given, I am not prepared to hold in this case that the sale of the Judgment-debtor's property is a nullity because no notice under Order 21, Rule 22, had been issued in the execution case against him. My conclusion, therefore, in agreement with the learned Subordinate Judge, is the sale is not without jurisdiction because the notice under Order 21, Rule 22 had not been issued.
10. Though it is not necessary, I should mention chat the final decree in the partition suit between the plaintiff and the other members of his family was passed on 12-12-1936, that is, after the impugned sale in Ex, case No. 61 of 1936 had taken place and, therefore, the decree-holder was not bound to proceed against the properties as allotted to the plaintiff on partition. The appellant's learned counsel did not make any point because of the final decree in the partition suit, and as I have already stated, except the two contentions which have been discussed above, no other contention has been urged before us in the appeal.
11. In the result, the appeal fails and is dismissed with costs.
Imam J.
12. I agree to the order that the appeal be dismissed. I would not like to express any definite opinion, as yet on the new Sub-rule (3) of Order 21, Rule 22.