Mt. Lila Kuar vs Bisunath Prasad Singh and Another

Wort, J.—This is an appeal against a decision of the learned Subordinate Judge of Gaya, in an application under Order 21, Rule 90 to set aside the sale on the ground that no notices were served under Order 21, Rule 22, that there was fraud with regard to the sale proclamation and that the price fetched was inadequate. There was also another point raised which has not been discussed before us and that is that the properties were sold according to the judgment-debtors against the order of the High Court.

The only substantial question with which we are asked to deal was whether the notice had been served under Order 21, Rule 22. There were three judgment-debtors concerned: one Dirgopal Singh, the second Bishunath Prasad Singh and the third Harihar Prasad Singh. The learned Judge in the Court below has come to the conclusion on all the points raised in favour of the judgment-debtors; but as I have already stated the argument was limited to the question of Order 21, Rule 22 before us. On the evidence given in the case it is clear that the first of the judgment-debtors, namely Dirgopal Singh, was a major at the time of the alleged service of notice under Order 21, Rule 22 but his complaint was that he had been treated as a minor throughout the proceedings.

This fact is clear from the record and there is no evidence whatever that there was any service upon him as a major. As regards Bishunath Prasad Singh, the learned Judge in the Court below has found that he was a minor, that the service was attempted on his natural guardian his mother, but she could not be found; no further notices were taken out nor was there any further attempt to effect service upon him. So far as the third judgment-debtor Harihar Prasad Singh was concerned, service was stated to have been on his mother and Babu Haridas Bose who was the guardian appointed by the Court.

The learned Government Pleader who appears on behalf of the appellant decree-holder in this case contends that on the record it should have been found that Order 21, Rule 22 had been complied with, but the only support that he can get for that argument is found in the order-sheet upon which he relies. This quite clearly is not the evidence upon which he can substantiate his case. The order-sheet merely states, as one would expect, that the various notices required by the Code had been taken out and had been served, but this by no means prevented the judgment-debtors from attempting, as they did attempt and succeeded in this case in showing, that the provisions of the Code had not been complied with. In my judgment'' there has been no reason put forward by the learned Advocate appearing on behalf of the appellant to show that the decision of the learned Subordinate Judge in this case was wrong.

In addition to the question of the irregularity or fraud relating to the service of the notices, the learned Judge has definitely come to the conclusion in this case that damage was suffered in as much as the property was sold under its value.

In these circumstances it seems to me that this appeal must fail and must be dismissed with costs.

Mohamad Noor, J.

I agree.