Chakku Panda vs Nemai Prasad Panda

Rowland, J.—One Gadadhar died leaving debts and leaving an estate which passed to Balaram Panda, a major, and Nimai Prasad Panda, a minor. The appellant before us after the death of Gadadhar sued these persons in respect of a debt due to him and obtained a decree in April 1933 limited as usual to execution against assets of the deceased in the hands of the judgment-debtors. Execution was taken out in June 1933 and certain property was sold to the decree-holder on 15th January 1934, the sale being confirmed on 23rd February 1934. The decree-holder took delivery of possession on 7th May 1934, and the first judgment-debtor, Balaram Panda, presented objections u/s 47 and Order 21, Rule 100, Civil P.C., which were dismissed on 28th September 1934. The second judgment-debtor on 26th September 1935, through his guardian ad litem, presented the application to set aside the sale out of which this appeal arises.

It was entitled an application under Order 21, Rule 90, Sections 47 and 151, Civil P.C. It was alleged that the minor was not properly represented in the execution case, that the decree-holder had proceeded against the personal property of the minor in contravention of the direction given in the decree, that a portion of the property purchased belonged to Raghunath Jiu Thakur and that there had been fraudulent suppression of service of sale processes leading to loss to the judgment-debtor.

The Munsif found that the processes had been correctly served and that the minor had been properly represented in the execution case. These findings were upheld by the District Judge on appeal. The Munsif was of opinion that the application was barred by the limitation of 30 days under Article 166 of the Schedule to the Limitation Act and he did not express an opinion on the merits of the contentions that the decree-holder had proceeded in execution against the personal property of the objector and that part of the property purchased belonged to Raghunath Jiu Thakur.

Accordingly he dismissed the application. On appeal the District Judge thought that the 30 days'' rule of limitation was not applicable to the present case, because if it were found that the personal property of the judgment-debtor had been sold the result might follow that the sale was without jurisdiction, and in that case he thought the proper Article of limitation to apply was Article 181. On this view he set aside the order of the Munsif and sent back the case on remand for disposal after inquiring into the allegations that the personal property of the objector had been sold.

In my opinion the view of the Munsif was correct and that of the District Judge erroneous. The sale which was held was not one which the Court could be said to have no jurisdiction at all to sell, as in cases when the power of sale is given exclusively to the Revenue Court the jurisdiction of the Civil Court being excluded. On the other hand, the Court sold property, which, if certain conditions were fulfilled, it had jurisdiction to sell. The judgment-debtor himself was a person subject to the jurisdiction of the Court. In Ramdhuri Chowdhury v. Deonandan Prasad AIR (1922) Pat 507 a question arose whether a sale should be set aside on the ground that there had been service of notice under Order 21, Rule 22. Authorities were referred to showing that if non-service of notice was established there was no jurisdiction to hold the sale.

It was held nevertheless that Article 166, Limitation Act, applied as the absence of jurisdiction would not be presumed merely because complete proof was not available to establish the service of the notice under Rule 22 which, if proved, would have given jurisdiction. A decision of the Calcutta High-Court in 46 Cal 9752 is more directly in point. Here the applicant u/s 47, Civil P.C., to set aside the sale was a son of the original judgment debtor against whom the decree-holder was entitled to proceed only to the extent of assets which had belonged to the father.

The objection was based, as in this case, on the contention that the property which had been brought to sale was the personal property of the objector. It Was held that Article 166 was applicable and the objector was not entitled to agitate beyond the period of limitation the question whether the property had been his father''s or not. I would allow the appeal, set aside the decision of the District Judge and restore that of the Munsif. The appellant should have his costs here and below.

Harries, C.J.

I agree.