Mahendra Jha and Another vs Krishnachandra Jha and Others

Umesh Chandra Sharma, J.—This application by two of the judgment debtors is directed against the concurrent judgments of the courts below refusing to set aside the execution sale held on 10-3-1966 in Money Execution Case No. 1 of 1963 of the Court of the Subordinate Judge, Darbhanga. The facts of the case are that Srimant Narain Singh and others (Opposite 2nd Party) obtained a decree in Title Suit No. 144 of 1952 in the court of 2nd Additional Subordinate Judge, Darbhanga against the father of petitioner no. 1 and husband of petitioner no. 2 and Sadanand Jha and others (Opposite 3rd party). The defendants of the suit preferred an appeal before this Court being F.A. No. 212 of 1960. In that appeal a consent decree was parsed. The defendants, appellant gave up all the claims in respect of the suit properties in favour of the plaintiffs and in lieu of mesne profits and costs, the defendant appellant nos. 1 to 4, i.e. the two petitioners, Sadanand Jha and Paratani Ojhain, were to pay a consolidated sum of Rs. 1,800/- to the decree holders. The consolidated sum having not been paid, the decree holders levied execution in Execution Case No. 1 of 1963 and on 10-3-1966 the properties of the judgment debtors were sold and were purchased by Krishna Chandra Jha (opposite 1st party). On 3-2-1967 the petitioners filed an application purporting to be one under Order 21 Rule 90 of the CPC (hereinafter to be called as "the Code") for setting aside the sale on the ground amongst others that no notice under Order 21 Rule 22 of the Code or for that matter any process of the execution was served on the judgment debtors. The result was that the valuable properties of, the judgment debtors, that is, over 37 bighas of land including the homestead, orchard, residential houses etc. were sold for a paltry sum of Rs. 2,252/- only.

The application was opposed by the auction purchaser who filed a rejoinder. It was pleaded, inter alia, that the application was hopelessly barred by limitation, the judgment debtors had full knowledge of the execution and all the processes in the execution were duly served. There was no fraud or collusion in service of the processes. The properties were sold for proper price.

The parties adduced evidence both oral and documentary in support of their respective contentions and the learned Subordinate Judge, by his judgment dated 7-3-1979, on consideration of the same, came to the conclusion that the processes of the execution were served on the judgment debtors and that the application for setting aside the sale was hopelessly barred by limitation. Accordingly, the application was dismissed. On appeal the learned Additional District Judge of the same place, by his judgment dated 8-6-1971, affirmed the findings of the learned Subordinate Judge and dismissed the appeal.

Being aggrieved by the said judgment, the applicants filed this revision before this Court. At the time of admission of this application the petitioners, with the permission of the Court, put in an extra court fee so that if ultimately this revision was to be treated as an appeal, there might not be any difficulty. The case came up for final hearing before the learned single Judge who was, by his order dated 19-10-1976, pleased to refer it to a Division Bench. Accordingly, this case has come before us for hearing.

Mr. Shreenath Singh, the learned counsel appearing for the petitioners, submitted that though the applicants (petitioners) had labelled their application for setting aside the sale as one under Order 21 Rule 90 of the Code, to all intends and purposes, it was an application u/s 47 of the Code, inasmuch as, it was clearly asserted in the application that no notice under Order 21 Rule 22 of the Code was served on the applicants and as such the application fell within the purview of Section 47 of the Code and Second Appeal would lie in this Court. It was, therefore, urged that this revision should be converted into an appeal.

Mr. Kailash Rai, the learned counsel appearing for the opposite party frankly conceded that on the allegations as they were in the application of the petitioners in the court below, the appeal would lie to this Court. Accordingly, we have heard this revision as an appeal.

The learned counsel for the appellants contended that the notice as required under Order 21 Rule 22 of the Code having not been legally served on the appellants particularly on appellant no. 2 Most. Inder Ojhain, the entire execution was without jurisdiction and the sale held thereunder was void and since it related to a question of execution u/s 47 of the Code, three years rule of limitation within the meaning of Article 181 of the Indian Limitation Act (now Article 137) would apply and not thirty days limitation under Article 166 of the Limitation Act (now Article 127) and as such the conclusion of the courts below that the application was hopelessly barred by limitation, was erroneous in law. In support of his contention the learned counsel relied on the case of (1) Ramdhari Singh and Others Vs. Saligram Singh and Others, . That case clearly supports his contention both on the point of limitation and as to the effect of non-service of notice under Order 21 Rule 22 of the Code. That was a case for setting aside an execution sale on the ground that the notice under Order 21 Rule 22 of the Code was not served on the judgment debtors. Both the courts below found that the notice was not served on the appellants. But whereas the trial court held that as a result of non-service of notice the sale was without jurisdiction, the appellate court held otherwise. In those circumstances their Lordships were seized with the question as to the effect of non-service of notice under Order 21 Rule 22 of the Code and the question of limitation, and held following the case of (2) AIR 1914 129 (Privy Council) , that the non-service of the notice under Order 21 Rule 22 of the Code rendered the entire execution proceeding as one without jurisdiction and Article 181 would apply. Their Lordships referred to the Full Bench decision of this Court in the case of (3) Ramlal Sahu and Others Vs. Mt. Ramia and Another, and observed that there has always been a distinction between a case of irregularity in service and non-service of notice. It has by now been settled that an irregularity in service of notice under Order 21 Rule 22 of the Code renders sale voidable not void but, non-service of the said notice venders execution as one without jurisdiction and the sale held thereunder as void. The earliest case on the point is the above Privy Council case (A.I.R. 1914 PC 129) which has been consistently followed as an authority in courts in India for the proposition that the sale held without serving of notice on the judgment debtors under Order 21 Rule 22 of the Code would be void, in as much as, notice under Order 21 Rule 22 of the Code gives authority and confers jurisdiction on the executing court to execute the decree and without such notice the executing court acquires no jurisdiction to execute the decree. If no notice is issued or served on the judgment debtors, the executing court would have no jurisdiction to proceed with the execution. As against that, the irregularity in service of notice under Order 21 Rule 22 would have no such effect. The Full Bench case of this Court reported in AIR 1947 (supra) was a case of an irregularity in service of notice. Das, J. (as he then was) who delivered judgment in this case (A.I.R. 1954 Patna 429) was a party to the Full Bench case reported in Ramlal Sahu and Others Vs. Mt. Ramia and Another, , and distinguished that case in these words:

..In the Full Bench decision in which I happened to give the leading judgment, I made it perfectly clear that the question of law which arose for decision in that case was the effect of an irregularity in the service of a notice under Order 21 Rule 22, Civil P.C. as distinct from failure to issue or want of such notice.

The present case, as contended by the learned counsel, is a case of non-service of notice and, therefore, the above Full Bench case would have no application. This case is thus covered by the decision reported in Ramdhari Singh and Others Vs. Saligram Singh and Others, . In the case of (4) Ajab Lal Dubey and Another Vs. Hari Charan Tewari @ Hari Tewari and Others, their Lordships were considering the combined effect of non-service of notice u/s 50 and Order 21 Rule 22 of the Code which is clear from the question referred to the Full Bench. The question was "whether a sale held in execution of a mortgage decree after the death of the judgment debtor but after the service of all necessary processes including the sale proclamation, without any notice to his legal representative, is void or voidable." The answer which was given to the above question by the majority, was that the effect of a sale held in execution of mortgage decree; after death of the judgment debtor, without notice to his legal representative is that it is not valid and operative against the legal representative. In course of discussion it was stated by Chatterji, J. who gave the leading judgment of the Full Bench, that the provision under Sub-rule (1) of Order 21 Rule 22 of the Code for the issue of notice was mandatory and following the privy Council case reported in AIR 1914 129 (Privy Council) , held that the notice under Order 21 Rule 22 was the foundation of the court''s jurisdiction to execute the decree. It would thus appear that this case also lends support to the view that the non-service of notice under Order 21 Rule 22 of the Code goes to the root of jurisdiction of the executing court.

As against this, the learned counsel for the respondent auction purchaser, contended that what is necessary is the issue of notice under Order 21 Rule 22 of the Code and once it is found that such notice was issued, the executing court would have jurisdiction to execute a decree and put the property of the judgment debtor to sale and such notice whether properly served or not served is merely an irregularity in service and would not render the sale void, particularly when the auction purchaser is stranger and had no concern with the proceeding in execution. It is undisputed in this case that notice, as required under Order 21 Rule 22, was issued on the judgment debtor including Inder Ojhain. Whether this notice was served or not served or irregularly served, would be considered at a later stage. For the present I am considering as a proposition of law as to the effect of non-service of notice under Order 21 Rule 22 of the Code. It is not possible for me to agree with the contention of the learned counsel that mere issue of notice under Order 21 Rule 22 on the judgment debtor is enough. No authority for that proposition has been brought to out notice. Notice under Order 21 Rule 22 is issued with certain purpose, in order to enable the judgment debtor to show cause against execution. I do not know how that purpose can be served unless the notice which was issued, has been served on the person for whom it is meant. In the decision reported in AIR 1954 Patna 429 (Supra), Das J. quoted with approval from the unreported judgment of Manohar Lal, J. dated 6-5-1947 in Miscellaneous Appeal No. 886 of 1946 the following passage:--

The relevant provision in Order 21 Rule 22 is that 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. It seems tome clear that the mere issue of a notice without it being served upon the judgment debtor cannot meet the requirements of the rule as unless the notice is served upon him, how can he show cause? On the plain reading of the provision it is clear to me that Rule 22 requires not only issue of the notice but service upon the person before the Court gets jurisdiction to sell apart from jurisdiction to entertain and take other steps therein.

The learned counsel for the respondents relied on the case of (5) Janak Raj Vs. Gurdial Singh and Another, . The question Involved in that case was whether a sale of immovable property in execution of an ex parte money decree ought to be confirmed when it was found that the said decree had been subsequently set aside. It is clear that there the question of confirmation of execution sale was under consideration and not the question of setting aside the sale. As a matter of fact, no application for setting aside the sale under Order 21 Rules 89, 90 or 91 was filed in that case. Their Lordships considered various provision of the Code and observed--

......There is no provision in the CPC of 1908 either under 0.XXI or elsewhere which provides that the sale is not to be confirmed if it be found that the decree under which the sale was ordered has been reversed before the confirmation of sale. It does not seem ever to have been doubted that once the sale is confirmed the judgment-debtor is not entitled to get back the property even if he succeeds thereafter in having the decree against him reversed.......

Then their Lordships proceeded to consider the position of a stranger auction purchaser and held that "the policy of the Legislature seemed to be that unless a stranger auction purchaser was protected against the vicissitudes of the fortunes of the suit, sales in execution would not attract customers and it would be to the detriment of the interest of the borrower and the creditor alike if sales were allowed to be impugned merely because the decree was ultimately set aside or modified." From the facts it would appear that that was a case of a valid sale and the purchaser was entitled to confirmation of the sale. Their Lordships were not considering the position of an auction purchaser in a void sale. In the latter class of cases the purchaser cannot claim the same protection. The above Supreme Court case was considered in the case of (6) Ram Chandra Arya Vs. Man Singh and Another, and distinguished in these terms:--

..This princiere can be of no assistance to the appellant in the present case, because in that case, when the sale was actually held, a valid ex parte decree did exist. The sale having been held in execution of a valid existing decree, was itself valid, and the only question that came up for decision was whether such a valid sale could be set aside otherwise than by resort to the provisions of Rules 89 and 90 of Order 21, Civil Procedure Code. In the present case the decree being a nullity, has to be treated as non est and, consequently the sale, when held, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of Rs. 89 and 90 of O. 21 C.P.C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale set aside..

Their Lordships then quoted with approval the following passage:--

It is to be noted, however, that there may be cases in which, apart from the provisions of Rs. 89 to 91, the Court may refuse to confirm a sale as, for instance, where a sale held without giving notice to the judgment debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held.

It would thus appear that if sale is held to be a nullity for want of notice on the judgment debtor under Order 21 Rule 22, the auction purchaser, even if he be a stranger, cannot claim the protection as he can claim in a valid sale and such an Invalid sale cannot be refused to be set aside merely because the auction purchaser is a stranger. The protection of stranger purchaser depends upon validity or invalidity of the sale. The case relied upon by the learned counsel does not help him.

It may be mentioned here that till 1947 the consistent view of this Court as of other Courts was that non-service of notice on a judgment debtor under Order 21 Rule 22 of the Code rendered execution proceeding as incompetent and the sale held thereunder void. On 14.5.1947 Order 21 Rule 22 of the Code was amended by this Court and a new sub-rule (3) was added which reads thus:--

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.

Order 21 Rule 22 as it stood before the above amendment 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, on 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.

Inspite of the above Sub-rule (2) it was held in AIR 1945 Pat 1 (supra) that non-service of notice under Sub-rule (1) would render the execution and sale void. Sub-rule (3), however, in clear terms has taken away the effect of non-service of notice under Sub-rule (1) and, prima facie, it can be said that non-service of notice under Order 21 Rule 22 of the Code would not render the execution and sale void. The new sub-rule, thus, clearly reversed the view consistently held in a long series of decisions right from AIR 1914 129 (Privy Council) . However, no decision bearing upon the interpretation of Sub rule (3) has been brought to our notice. For the present purpose, I would assume that the sale held in the present case which admittedly took place after the said amendment, is voidable.

Faced with this situation, the learned counsel for the appellants drew our attention to the provision of Section 97 of the CPC (Amendment) Act, 1976 (hereinafter called the Amendment Act) and contended that the effect of the amendment is that the view consistently taken on the effect of non-service of notice under Order 21 Rule 22 of the Code till before 1947 has been restored and it should be held, inspite of the Patna Amendment in 1947, that non-service of notice under Order 21 Rule 22 would render the execution and the sale a nullity. Section 97(1) of the said Amendment Act is in these terms:--

Any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed.

"Principal Act" has teen referred to in the Amendment Act as the Code of Civil Procedure, 1908. The argument of the learned counsel for the appellants is that if any amendment has been made in the principal Act by the State Legislature or the High Court before this Amendment Act came into force, the same shall stands repealed. In other words, it will be deemed as if no such amendment had been made in the principal Act and the case shall be governed by the original provisions of the principle Act. The argument comes to this that the effect of non-service of the notice under the Order 21 Rule 22 of the Code, as originally stood, that the executing court acquired no jurisdiction to execute the decree as has been established since long following the Privy Council case reported in AIR 1914 PC 129 (supra), shall continue to govern the future action after the Amendment Act came into force. The question is what will be the effect of the provision of Section 97(1) of the Amendment Act on the action which was taken before the Amendment Act and was pending at its commencement and was being governed by the provisions of the principal Act as amended by the High Court, to be specific, by the amendment of 1947 introduced by the Patna High Court in Order 21 Rule 22 of the Code. The contention of the learned counsel for the appellants is that the provision of Section 97(1) would apply to the pending action as well in view of Sub-section (3) of Section 97 of the Amendment Act which runs thus:--

Save as otherwise provided in Sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been Acquired or had accrued before such commencement.

It would thus appear that the provision of the principal Act as amended by this Amendment Act, shall apply to pending action. The learned counsel appearing for the respondent contended that the sale in the present case had already taken place in 1963 and with the sale the execution had come to an end much before the Amendment Act came into force and, therefore, no action was pending on the date of the commencement of this Amendment Act and as such Section 97(1) of the Amendment Act shall not apply to the present case. He relied on the case of (7) K. Kapen Chako Vs. The Provident Investment Company (P) Ltd., . In that case, it appears, the decree by the trial court as well as by the High Court was passed in a suit in accordance with the provisions of the then existing Kerala Land Reforms Act of 1964. In 1969 there was an amendment to the said Act. During the pendency of the appeal in the Supreme Court the said Amendment came into force, it was argued that the 1964 Act as amended in 1969 shall govern the case. Their Lordships repelled the argument and held that the amendments were prospective and not retrospective and the decree having been correctly passed in accordance with the provisions of 1964 Act, the appeal was dismissed. In course of discussion their Lordships referred to a large cumber of English cases including one (8) Moon V. Durden [ (1948) 2 Exch. 22]. In that case the question for consideration was whether Section 18 of the Gaming Act of 1845 was retrospective so as to defeat an auction which had been commenced before that Act came into force. It was held that it was not retrospective. Their Lordships referred to the observation of Parke B. in that case which makes the point clear. The observation is "It seems a strange thing to hold that the legislature could have meant that a party who under a contract made prior to the Act had as perfect a title to recover a sum of money as he had to any of his personal property, should be totally deprived of it without compensation." Thus, it was clearly held that the amendment was not retrospective. In the present case if it is found that the CPC (Amendment) Act, 1976 is not retrospective there would he no doubt that the case would be governed by Order 21 Rule 22 of the Code as amended by the Patna High Court in 1947. The question, therefore, is whether Section 97 of the Amendment Act is retrospective. There is nothing in Section 97(1) of the Amendment Act, as it is, to show that it is retrospective but when it is read with Sub-section (3), it becomes clear that the provisions of the principal Act as amended by this Act would apply to pending action. It is true that ordinarily all Acts are to be construed as prospective unless by clear words or by necessary intendment or implication, it is found to be retrospective. The language as employed in Sub-section (3) clearly makes out the intention of the framers of the law that the provisions of the principal Act as amended by this Act would apply to all actions which are pending at the commencement of this Act. The provision of the principal Act as amended by this Act includes the provision of Suction 97(1) also and, therefore, the provision of Section 97(1) shall be deemed to be retrospective in operation. This view is further supported by the fact that the provisions which have not been made retrospective, have been specifically mentioned in Sub-section (2) of Section 97 of the Amendment Act. If the intention had been not to wipe out the amendments made or provision inserted in the principal Act by the State Legislature or by a High Court before the commencement of this Act, there was no apparent reason to have not included the provision of Section 97(1) also in Sub-section (2) of Section 97 of the Amendment Act I, therefore, hold that the provisions of Section 97(1) are retrospective and they would apply to pending proceedings.

As for the argument of the learned counsel for the respondents that nothing was pending on the date of commencement of the Amendment Act and, therefore, the provision of the Amendment Act shall not apply to the present case, the undisputed position is that the present appeal is one u/s 47 of the Code, in as much as, one of the objections of the judgment debtor appellants was that no notice under Order 21 Rule 22 was served on them. It has been found that non-service of notice under Order 21 Rule 22 of the Code goes to the root of jurisdiction of the executing court to execute the decree and this is how the question raised by the judgment debtor falls u/s 47 of the Code. There is thus no substance in the argument of the learned counsel for the respondents that the sale having taken place, execution came to an end. The execution in this case will be deemed to be pending in appeal. This case would, therefore, be decided in accordance with the provisions of the principal Act as it stood before the amendments of the Patna High Court.

The learned counsel for the respondents, relying on the case of (9) Print Pak Machinery Ltd. Vs. Jay Kay Papers Conveters, , contended that the High Court Rules shall prevail over the provisions of the Code. With respect, I do not agree with this contention. The decision cited by the learned counsel was given in different context and does not support his contention. That case relates to the Delhi High Court (Original Side) Rules which came into force in 1967 and provide summary procedure for suits on the original side of the Court. The said procedure is substantially the same which was contained in Order 37 of the Code with a little difference. Question arises whether the provisions of the Rules or those of the Code shall prevail. In that connection also, the question arose whether Section 97(1) of the Amendment Act affects the original Side Rules of the Delhi High Court. Their Lordships answered the question in these terms:--

Accordingly I would hold that; in the event of inconsistency, the original Side Rules prevail on the original side of this Court and not the CPC and, the amending Act of 1976 has made no difference in this respect.

In course of discussion, their Lordships pointed out that Section 97(1) of the Amendment Act affected the Rules which were framed by the High Court under authority of the provisions of the CPC and not the Rules which were not framed thereunder. The Delhi High Court was constituted in 1966 by the Delhi High Court Act. Section 7 of the Act confers on the Court powers to make rules and orders with respect to practice and procedure for the exercise of its ordinary original civil jurisdiction and acting under those powers, the Delhi High Court framed the Rules referred to above. It is clear that those Rules were not framed under the CPC and, therefore, it was held that those Rules shall not be affected by Section 97 of the Amendment Act. In the present case we are concerned with the amendment made by the Patna High Court under Order 21 Rule 22 of the Code under authority conferred on it by the provisions of the Code (Section 122). That being the position, the case referred to above by the learned counsel, cannot be relied upon for the proposition that the Rules framed by the Patna High Court amending provision of Order 21 Rule 22 of the Code shall prevail inspite of Section 97(1) of the Amendment Act.

The learned counsel for the appellants referred to certain paragraphs from Maxwell on the Interpretation of Statutes (12th Edition). At page 215 it has been stated under the heading Retrospective Operation of Statutes as follows:

....It is a fundamental rule of English Law that no statute shall be construed to have a retrospective operation unless such a construction appears very clearly in the terms of the Act, or arises by necessary and distinct implication.

About pending actions it has been said:

In general, when the substantive law is altered during the pendency of an action, the rights of the parties are decided according to the law as it existed when the action was begun, unless the new statute shows a clear intention to very such rights.

Further

But if the necessary intendment of a statute is to affect the rights of parties to pending actions, the court must give effect to the intention of the legislature and apply the law as it stands at the time of the judgment even though there is no express reference to pending actions....

The above principles enunciated by Maxwell cannot, perhaps be disputed. In the present case we are not to deduce or infer the intendment of the Statute from the language used. Here the Statute has clearly applied the Amendment Act to pending actions. There can, therefore, be no doubt that the provision, of Section 97(1) of the Amendment Act is retrospective.

This brings us to the question whether the notice under Order 21 Rule 22 of the Code was served on the appellants-judgment debtors. The learned counsel for the appellants stated that so far as Mahendra Jha (appellant no. 1) was concerned, having regard to she service reports (Ext. E/1), he would not be justified in saying that no notice was served on him. He therefore, confined his argument to the non-service of notice on Most. Inder Ojhain (appellant no. 2) alone. It was admitted that in the eye of law there was no service of notice under Order 21 Rule 22 on Most. Inder Ojhain (appellant no. 2). It appears from the service report (Ext. E) that the notice was issued under Order 21 Rule 22 of the Code to all the judgment debtors, namely, Mahendra Jha, Inder Ojhain, Sadanand Jha and Most. Paltan Ojhain together at the address of village Palimohan. The peon (O.P.W. No. 8) went to the village with the notice on 27.1.1963 and is said to have served the notices on all the judgment-debtors at Palimohan except Mahendra Jha. One Jagannath Singh was stated to be the identifier and Mohit Jha and Teju Singh were said to be the witnesses. Neither the identifier nor the witnesses have been examined in this case. The peon submitted the report (Ext. E) on 1.2.1963 stating that he sent two copies of notices to the two Pardanashin ladies Most. Inder Ojhain and Most. Paltan Ojhain inside the house through a maid servant and in loud voice announced the notice. The maid servant came back and said that the ladies would not accept the notice nor would they grant receipt. Therefore, he hung one copy of each of the notices on the east facing door and Nikas of the judgment-debtors in presence of the witnesses. It is not clear from the peon''s report or his evidence if the two ladies were living in the same house. It is also not clear whether at the time of the alleged service of notice the two ladies were inside the house. It is also not clear from the report and the evidence that Most. Inder Ojhain had any maid servant or that who was that alleged maid servant and whether she was maid servant of Inder Ojhain. There is nothing in the report or in the evidence to show that the peon made efforts or any enquiry to ascertain those facts. Ordinarily, it is not expected that the two ladles of two different families would be living in the same house. If that was so, it is not clear whether the notice was hung on the house of Inder Ojhain. The learned counsel appearing for the appellants, contended that even assuming what had been stated in the service report were all correct, this could not be accepted as a valid service in law, and it should be held that Most. Inder Ojhain was not served with a notice under Order 21 Rule 22 of the Code. The learned counsel for the respondents on the other hand, contended that the notice was admittedly issued to Inder Ojhain and the peon went to serve the notice to her. Peon claims to have served the notice. In those circumstances, at the most, it may be a case of irregularity in service and not of non-service. Whether the notice was served or not, is a question of fact and the two courts below having held that the notice was served on Most. Inder Ojhain, this Court in Second Appeal was not empowered to interfere with that finding. In support of the contention the learned counsel relied on the cases of (10) R. Ramachandran Ayyar Vs. Ramalingam Chettiar, and (11) 54 CWN 508 (Privy Council) . It is, no doubt, true that the High Court in Second Appeal would not interfere with the finding of fact arrived at by the courts below however gross or erroneous that finding may be, unless the finding was tainted with some error of law including the error in the procedure provided by the Code. The learned counsel also relied on the case (12) Bihare Lal Mitter Vs. Tanuk Lal Mander and Others, . In that case the court below had drawn an inference of fraud from the carelessness or negligence on the part of the process-server in serving the notice. Their Lordships negatived the finding of fraud and held that no such inference could be drawn. There is no question of fraud in the present case. The question here is whether notice was served in accordance with law. That case, therefore, is not relevant to the facts of the present case. The learned counsel also referred to a case of (13) Lalji Sah and Others Vs. Sat Narain Bhagat and Others, for the proposition that there was a presumption that the official act was regularly performed. Nobody can dispute the proposition as it is. But that presumption is a presumption of fact and cannot be called in aid where the question is whether the notice was or was not served in accordance with law. The learned counsel for the appellants pointed out that in the present case the notice was not served according to law and as such the finding of the courts below suffers from legal infirmity. He referred to certain provisions of Order 5 of the Code.

By virtue of Rule 2 of Order 48 of the Code the notice required to be served in execution, shall be served in the manner provided for the service of summons. Service of summons is effected under the provision of Order 5 of the Code. It has therefore, to be examined whether the notice under Order 21 Rule 22 of the Code was served on Most. Inder Ojhain in accordance with the provisions of Order 5 of the Code. Rule 11 of Order 5 provides that where there are more defendants than one, service of summons shall be made on each defendant. The mode of service prescribed in Rule 10 is that service of notice shall be made by delivering or tendering a copy of the notice. Rule 12 provides that the service shall be made on the defendant in person as far as practicable. The learned counsel for the appellants submitted that this is the normal and the best mode of service of notice. Other modes of service provided in the Code are only exceptions to this general mode of service. Exceptional mode of service may be resorted to only when service cannot be effected personally on the notice and it must be strictly construed. Other modes of service are that where the defendant has an agent service on him shall be a good service or where the defendant is absent from his residence, service may be made on any adult member of the family (Rules 13, 14 & 15). Failing all that, service may be effected by affixing a notice on the outer door or some other conspicuous part of the house of the defendant (Rule 17). In the present case, admittedly, notice was not served on Most. Inder Ojhain personally. It is nobody''s case that she had any agent or adult member in her family on whom notice was or could have been served. Notice in this case was said to have been served by affixing a copy thereof on the door and Nikas of a house. In other words, notice in this case may be deemed to have been served under Order 5 Rule 17 of the Code. Bare reading of Rule 17 of Order 5 would indicate that service by affixture can be done only when the defendant having been served with the notice, refused to sign the acknowledgment or on fulfilment of other condition. This is not a case of refusal to sign the acknowledgment. So, the first part of the rule would not apply. In order to bring the case under the latter part of the rule, the following conditions must be fulfilled:

(i) Where the serving officer cannot find the defendant who is absent from his residence at the time when the service is sought to be effected on him at his residence.

(ii) There is no likelihood of his being found at the residence within a reasonable time.

(iii) There is no agent or other person to accept the notice on his behalf.

All the above conditions must be ascertained by the serving officer after using all due and reasonable diligence. The serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house only on fulfillment of those conditions. Purport of the rule is first to find out the notice and for that purpose real, substantial and diligent efforts must be made after proper enquiries. The serving officer must take pains to find him out. The report of the serving officer must state what efforts or enquiries were made by him to find out the defendant. The report must set out his action in full. If the report does not contain all those things and there is no evidence that there was any enquiry or effort made in that direction the serving officer cannot be deemed to have exercised due and reasonable diligence. Affixture of notice on a house by itself is no service of notice on the notice nor is reading aloud the summons and affixing it, a proper service. If the law lays down that a particular thing should be done in a particular way, the thing must be done in that way or not at all. Service of notice in a case, particularly in a case of female and when valuable properties of a judgment debtor is going to be sold, is a very important matter and serious too and, therefore, before the Court accepts notice by affixture, it must be fully satisfied about the fulfilment of the conditions mentioned in Rule 17 of Order 5 of the Code. In the present case there is absolutely no evidence to show that the house on which the notice was affixed was the house of Most. Inder Ojhain or that she was or was not inside that house at the time when the notice was said to have been sent to her. The identifier Jagannath Singh has not been examined and the peon does not say either in his evidence or in the report that Most. Inder Ojhain or her house was identified by anybody to the peon. There is also no evidence on the record to show that the maid-servant who is said to have carried the notice inside the house, was the maid-servant of Most. Inder Ojhain nor is there any evidence to show that Inder Ojhain and Patten Ojhain were living in the same house, as is the impression gathered from the report (Ext. E). It would thus appear that there is complete lack of evidence to prove the conditions precedent to the affixation of the notice on the door of the house. It has, therefore, to be held that the notice in this case was not served on Most. Inder Ojhain much less in accordance with law.

Final Court of fact considered the question of non-service of notice under Order 21 Rule 22 of the Code on Most. Inder Ojhain in Paragraph 10 of the judgment and said:

Ext. E is the report of service of notice on the other three judgment debtors including Inder Ojhain, mother of Mahendra Jha at Palimohan. All the judgment debtors refused to take the notices after they being made aware of the contents and as such the peon hung them on their respective houses.

On that finding the court below accepted the service report (Ext. E). In the first place there is absolutely nothing on the record to show that the notice was ever served on Most. Inder Ojhain personally nor is it anybody''s case and, therefore, the question of refusal to take the notice after being made aware of its contents does not arise. In the second place the court below did not at all direct its attention to the consideration of the question whether the conditions to be fulfilled before affixture of notice on the door were satisfied in this case of not. Without considering that question, the court below was not justified in law to accept the service of notice on Most. Inder Ojhain as being validly served in accordance with law. It appears from paragraph 11 of the judgment that the court below was itself not confident about the validity or otherwise of the service of notice on Most. Inder Ojhain under Order 21 Rule 22 of the Code, when it assumed that even if the notices under Order 21 Rule 22 were not served on the judgment debtors, it was a case of mere irregularity and could not take away the jurisdiction of the Court to sell the property. It is clear that the court below was labouring under the impression that the service of notice under Order 21 Rule 22 and judgment-debtor was set of much consequence and, therefore, even if it was not served, it would have no effect on the jurisdiction of the Court to sell the property. The court below would have been, perhaps, right in the above observation at the time when it passed the judgment but it has been seen that the position has quite charged after the passing of the CPC (Amendment) Act, 1976. Under that impression the court below did not go deeper into the consideration of the question of service of notice under Order 21 Rule 22 on Most. Inder Ojhain and proceeded to consider that if the other processes in execution had been served on Most. Inder Ojhain that would cure the irregularity if any, in the service of notice under Order 21 Rule 22 on Most. Inder Ojhain. It has been found in this case that the notice under Order 21 Rule 22 gives jurisdiction to the executing court to execute the decree and if that notice is not served on the judgment debtor the entire subsequent proceeding in the executing court is null and void and therefore, the service of other processes in the execution on the judgment debtor is neither hers nor there.

In view of the above discussion, it should appear that the finding of the court below about service of notice under Order 21 Rule 22 on Most. Inder Ojhain was tainted with illegality and the same cannot be binding on this Court in Second Appeal. On the materials on the record it has to be held that there was no service of notice under Order 21 Rule 22 on Most. Inder Ojhain in accordance with law. This is thus a case of non-service of notice under Order 21 Rule 22 of the Code which affected the jurisdiction of the executing court to execute the decree and rendered the entire proceeding including the sale held thereunder as without jurisdiction and Void. For the reasons stated above, I set aside the Judgment of the courts below and allow this appeal, but in the circumstances of the case, without costs.

Uday Sinha, J.

I agree to the judgment already passed by Brother U.C. Sharma, J. I am in agreement with the conclusion of my learned brother that in fact and in law there was no service of notice under Order 21 Rule 22 of the CPC upon Most. Inder Ojhain if I had not been of this view it would have been difficult for me to agree to the order passed despite the fact that property worth more than Rs. 60,000/- was sold only for Rs. 2,500/-. The fact that the auction purchaser was no other than the son in law of the other judgment debtor Sadanand Jha him-self would have made no difference, had I not found myself in agreement with my learned brother in his conclusion that no notice under Order 21 Rule 22 had been served upon Most. Inder Ojhain.