Baijnath Singh and Others vs Hari Prasad Bal

Das, J.—I am clearly of opinion that the application, in the form is which it was presented, was not maintainable, and that the Courts below should have refused it. It was urged before us that the application was one u/s 47; but what was the question that the Courts had to try? The question was whether, not having been made a party to the execution proceedings, the Respondent was bound by a sale held in his absence. But this is precisely the question which he raised in his application of the 11th September 1922. The Court held that he was a pre forma Defendant and was not entitled to a notice under Order 21, Rule 66. I think the decision of the Court was wrong. But the applicant was satisfied with the order, and did not prefer an appeal therefrom. The sale has now taken place, and he applies for an order that he is not liable to be evicted inasmuch as notice under Order 21, Rule 66 was not served on him. The Courts below have acceded to his application, and, as a result of their orders, the applicant in effect becomes the owner of the properties, though he was a puisne mortgagee and failed to redeem the prior mortgage.

If his present application is to be regarded as an application u/s 47, the application of the 11 September 1922 was equally an application u/s 47. If that be so, then the order passed on the application of the 11th September 1922 operates as res judicata, and it is not open to the applicant to re-agitate the question whether he was entitled to notice of execution. In order to succeed in the present application, the applicant must establish that he was entitled to notice under Order 21, Rule 66; but this question he cannot raise having regard to the order of the Court on his application of the 11th September 1922.

It was next urged that the application was one under Order 21, Rule 108. But Rule 100 applies to a case where a person other than the judgment-debtor is dispossessed of Immovable property; but here the applicant is the judgment-debtor, and so far as we are informed, he has not been dispossessed of the property yet.

Lastly, it was contended that the application was one substantially under Order 21, Rule 90; but it is sufficient to point out that there is no complaint here of a material irregularity in publishing or conducting the sale.

There was no merit whatever in the application, and the Courts below should not have stretched the law to give the applicant the status of ai1 owner He is a puisne mortgagee and a decree was fairly or properly" obtained against him He failed to redeem within the time fixed by the decree. He has made no attempt to satisfy the mortgage decree; and the position now taken up by him is on8 of absolute technicality, namely, the he should have been served with notice under Order 21, Rule 66 of the Code. The technical objection may be by the technical reply that this is precisely the issue which he raised in his application of the 11th September 1922, and that the order passed on that application operates a8 res judicata between the parties.

I would allow this appeal, set aside the orders passed in the Courts bellow, and dismiss the application with costs in all the Courts.

Ross. J.

I agree.