Dwarika Singh vs Siri Kishun Singh and Others

Manohar Lall, J.—This an appeal by the judgment-debtor against the concurrent decisions of the Courts below by which they have dismissed his application which was filed under Order 21, Rule 90, Civil P.C., for setting aside the sale. The important question for consideration is the effect of the non-compliance of the notice referred to in Section 148 (g), Bihar Tenancy Act.

The facts are these. The sale was held on 16th January 1942. On 2nd June 1942, the judgment-debtor put in an application to set aside the sale on the ground that the processes had been fraudulently suppressed with the result that he has suffered substantial injury and that he had no knowledge of the sale till 15th May 1942. The trial Court held that there was proper service throughout the execution case and that the applicant signally failed to point out any fraud or irregularity in publishing or conducting the sale, or at any stage of the execution. He also held that the land has not been sold at an inadequate price and the applicant did not suffer any loss.

With regard to the date of knowledge of the sale, he pointed out that the applicant did not examine himself and that his allegation that he learnt about the sale for the first time from Indradeo Singh on 15th May 1942 cannot be believed. Accordingly he was satisfied that the applicant had full knowledge about the execution and sale from the processes served and that the application was barred by limitation. The judgment-debtor then went in appeal to the learned District Judge who summarily dismissed his appeal on 5th February 1943. Mr. Salisbury has given sufficient reasons why he was satisfied that the appeal should be dismissed although for myself I would have been more satisfied if the appeal had not been dismissed summarily but had been disposed of after hearing the contentions of both parties. The contentions wore serious and not frivolous.

The learned Judge held that the property was sold for an inadequate price and thereby reversed the finding of the learned trial Court without hearing the respondents. But he agreed with the finding of the trial Court that the application was obviously barred by limitation. The learned Judge also found that there was one material irregularity in that no notice was issued u/s 148 (g), Bihar Tenancy Act, but as he had held that the application was barred by limitation he dismissed the appeal. Hence the second appeal to this Court. It is contended that the sale was a nullity because the provisions of Section 148(g) have not been complied with as found by the learned District Judge, and, therefore, the period of limitation was three years for setting aside the sale and not merely 30 days as was erroneously assumed by the learned District Judge. Section 148 (g) has been substituted by Act 11 of 1938 which provides that

the Court shall, when passing a decree, make an order directing that a notice be sent to the defendant at the plaintiff''s cost in the prescribed form stating the amount payable to the plaintiff under the decree...and calling upon the defendant to pay to the plaintiff or deposit into Court such amount within a period of forty-five days from the service of such notice.

No provision is made in this section or in any other part of the Act that it is the service of this notice which confers jurisdiction on the executing Court to execute the decree, or in other words that the non-service of the notice debars the executing Court of its undoubted jurisdiction to sell the property of the judgment-debtor or entitles the judgment-debtor to ignore the sale as a nullity and to have it set aside on the failure of serving him with such notice. Provision is apparently made to give an opportunity to the judgment, debtor to pay up the decretal amount within 45 days from the service of the notice. It could not have been the intention of the Legislature that where the judgment-debtor knows of the passing of the decree, for instance where he is fully represented and appears and contests the rent suit, he must still be served with a notice calling upon him to pay the decretal amount within 45 days. The decree itself calls upon the defendant to pay the decretal amount. It may be that the Legislature in-tended to safeguard the rights of those defendants against whom ex parte decrees were passed and who did not know the dates when those decrees were actually passed against them. But whatever the intention of the Legislature might be, I must proceed upon a proper construction of Section 148(g) and hold that the section is merely directory and not mandatory and does not go to the root of jurisdiction of the Court executing the decree. This section cannot be more mandatory than the provisions of Order 21, Rule 68, Civil P.C., which provides that

no sale shall, without the consent in writing of the judgment-debtor, take place until after the expiration of at least 30 days in the case of immovable property...calculated from the date on which the copy of the proclamation has been affixed on the court-house of the Judge ordering the sale.

But it has been held by their Lordships of the Judicial Committee in Tassaduk Rasul Khan v. Ahmad Husain (1994) 21 Cal. 66 that if a sale is held before the expiration of 30 days, this is merely an irregularity and the judgment-debtor can only succeed if he establishes that he has suffered substantial injury due to this irregularity. It has not been shown in this case that the sale took place before the expiration of 45 days from the date of the decree nor has it been found that the judgment-debtor did not know of the passing of the decree. What then is the practical effect of Section 148 (g)? In my opinion this merely gives a right to the judgment-debtor to pay up the whole decretal amount within 45 days from the date of the decree or the date of the service of notice upon him of the decree, and if any execution is levied against him before that date he is not liable to be saddled with the cost of executing the decree before that date.

If, however, the execution is levied without any notice being issued to the judgment-debtor as required by Section 148 (g) the judgment-debtor can go and complain to the Court that he had never received any such notice and that he is now willing to pay the decretal amount. In that event the cost of the execution would be entirely in the discretion of the learned Munsif or the officer who conducts the sale, and he, in my opinion, will be exercising a sound discretion if he deprived the decree-holder of all costs of the execution. But I cannot accede to the argument that the whole sale must be held to be without jurisdiction merely because the notice required u/s 148 (g) has neither been issued nor served upon the judgment-debtor.

For these reasons the judgment debtor in my opinion took the proper course of filing an application under Order 21, Rule 90, Civil P.C., but this, on the findings arrived at, is hopelessly barred by limitation. I will dismiss this appeal with costs.