(Mt. Bibi) Zainab and another vs Paras Nath

Mullick, J.—This application has been made against an order passed by the Officiating Additional District Judge of Patna, on the 31st January, 1923, reversing the order of the Subordinate Judge of Patna, dated the 10th May, 1922. It appears that on the 18th April the Subordinate Judge of Patna sold certain immoveable properties belonging to the two petitioners and their co-judgment-debtors in execution of a money decree. On the 5th May the petitioners applied for permission to deposit the money under Order 21 Rule 89 C. P. C. and to have the sale set aside. On the same date the decree-holder made an application stating that he had received the full amount of his decretal claim from the judgment-debtors and asking that the payment should be certified. On the 6th May the petitioners deposited in Court the compensation due to the auction-purchaser. On the same date the auction-purchaser paid into Court the balance of the auction-purchase money. Thereupon the Subordinate Judge adjourned the case till the 10th May in order that the petitioners might produce atreasury Challan showing that the necessary sums had been paid into the treasury. On the 10th May the case was duly put up and the sale was set aside. Against this order the auction-purchaser appealed to the Additional District Judge, who held that as the auction-purchaser had not been made a party to the proceedings within one month of the date of the sale the deposit could not be accepted. He accordingly set aside the order of the Subordinate Judge and directed that the sale should be confirmed. The present application is made against the Additional District Judge''s order.

It is urged by the petitioners that the learned Additional District Judge declined to exercise jurisdiction in refusing to accept the deposit. Now Order 21 Rule 92 C. P. C. nowhere speaks of the auction-purchaser being made a party; it provides that no sale can be confirmed or set aside unless notice of the application has been given to all persons affected thereby; and in my opinion the rule means that the Court is incompetent to make any order at all till such notice has been given. The duty of moving the Court to issue notice lies of course upon the applicant and all that the Court has to do is to give him a reasonable opportunity for doing so. On default the Court may dismiss the application, and there is no obligation upon the Court to issue a notice of its own motion without the assistance of the applicant. The law requires that the application to deposit should be made within 30 days of the sale. But it does not impose any period of limitation for the issue of notice, and so it has been held in Ganesh Bab Naik v. Vithal Vaman Mahalya [1912] 37 Bom. 387 - 15 B.L.R. 244 - 19 I.C. 475. It is not clear whether the learned Additional District Judge was of opinion that the period of limitation for the issue of notice was 30 days or whether he was of opinion that there must be an express prayer to make the auction-purchaser a party to the proceedings within that period. In either event his view of the law is wrong. The learned Additional District Judge, however, relies on the decision of a single Judge of this Court in Mt. Sumitra Kuer v. Dnmri Lall [1921] 2 P.L.T. 336 - 62 I.C. 61 which fallows a decision of the Calcutta High Court in Ajiuddin Ahmad v. L. Kohda Bux [1919] 50 I.C. 5. It seems to have been held in these cases that the applicant must make the auction purchaser a party to the proceedings within one month.

If the view of the learned Judges was that notice must be issued upon the auction-purchaser within one month, then I must respectfully differ. All that the law requires is that the deposit shall be made within one month of the sale.

With regard to the contention that the auction-purchaser must be made a party, the law does not in terms require him to do so, but assuming that it does I have not been able to obtain from the learned Vakil for the opposite party any precise exposition of the applicant''s duty in this matter. In the present case the applicants stated in the body of their petition the name and address of the auction-purchaser and asked that the sale should be set aside after payment of Rs. 175, as compensation to the auction-purchaser. I fail to see why this was not an application to make the auction-purchaser a party. The fact is that as soon as the notice is issued upon him the auction-purchaser becomes a party to the proceedings and it is, therefore, unnecessary to make a special prayer of adding him as a party. There is no prescribed form of application and in my opinion in the present case there was a sufficient application for the service of notice upon the auction-purchaser.

The Subordinate Judge, therefore, acted without jurisdiction in setting aside the sale without fixing a date for hearing the auction-purchaser.

The learned Additional District Judge, therefore, had jurisdiction to set aside the learned Subordinate Judge''s order and to remand the case for the issue of notice upon the auction-purchaser or to dispose of the matter finally himself. It appears that as all parties affected by the sale were before him he chose the latter alternative and he held that the applicants were not entitled to get the sale set aside because they had failed to serve the auction-purchaser with a notice within one month of the sale.

Now it is true that this was a wholly erroneous view of the law of limitation, but all the same it was a decision arrived at with jurisdiction and it cannot, therefore, be revised under S. 115 C.P.C. The principle is now too well settled, but we have been invited by the learned Vakil for the opposite-party to refer to Fazal Rab v. Manzur Ahmad [1918] 40 All. 425 because the facts of that case are somewhat similar to the facts before us. There the sale was held by the Collector on behalf of the Civil Court and the deposit was made in the Court of the Collector because the Civil Court was closed. The Civil Court of first instance set aside the sale, but the appellate Court confirmed it and upon an application for revision being made to the High Court it was held that parties could not by a resort to the revisional jurisdiction secure the benefits of an appeal and that a Court of competent jurisdiction having held that the deposit had not been made within the specified time the decision could not be interfered with under S. 115 C P.C.

In my opinion the order of the Additional District Judge though erroneous was final and it cannot be revised in the exercise of our revisional jurisdiction.

It has, however, been urged that we should interfere in the exercise of our powers of superintendence, but those powers are not to be lightly exercised. The petitioners were asking for what was really an indulgence and it was their duty to see that the statute was complied with. If they had put in the process fee for the issue of the notice at the time of the deposit the Subordinate Judge would probably not have disposed of the case till notice had been served.

In my opinion the petitioners were guilty of negligence and we should not exercise our powers under S. 107 of the Government of India Act in their favour.

The application will, therefore, be dismissed with costs: hearing fee two gold mohurs.

Bucknill, J.

I agree.