Mt. Shivadulari Kuer vs Bhagwati Charan Sahu

Courtney-Terrell, C.J.—This is an application in civil revision against the appellate judgment of the District Judge reversing the order of the Munsif to whom the petitioner had made a successful application under Order 21, Rule 90, Civil P.C., to set aside a sale. It is agreed, having regard to the length of time which took place between the sale and the application to the Munsif, that the application was out of time, but it is contended that that difficulty of time is surmounted by reason of the fact that the sale was altogether a nullity because of the finding of the lower appellate Court on the question of fact as to whether, the notice under Order 21, Rule 22 had been served upon the petitioner.

Now the trial Court had held upon the evidence that in fact the story of the service of the proceedings under Order 21, Rule 22 was false and that service had in fact been suppressed by the decree-holder. The learned District Judge in reviewing the judgment of the trial Court went into the evidence at length and called attention to evidence which the Munsif had apparently ignored and decided that the Munsif''s view of the matter that the service had been suppressed and had not been effected was erroneous. The lower appellate Court decided that the service had in fact been effected and that as to the following of the rules in effecting service such departures from the prescribed course as may have occurred did not affect the substantiality of the service and might be ignored. There is no doubt that the learned lower appellate Court had jurisdiction to decide that the service had been effected and there was no doubt that it had jurisdiction to decide whether such departures from the prescribed practice had or had not as the case might be, materially affected the question of the substantial nature of the service.

The appellate Court having found that the service had been effected, the case is, in my opinion, at an end, but the argument was pressed here, and ably by Mr. Sarjoo Prasad who attempted to put the case on this basis. He contended that a review of earlier authorities would show that any irregularity in the effecting of the service was equivalent to holding that no service in law had taken place, and it cannot be denied that if no service in law had taken place then the proceedings are void from beginning to end. We have been interested if not entertained by a minute examination of authorities going back over many years. I do not propose to follow the review of those cases in detail but I think the law may be summed up in this way. Where the rules of a Court direct that service shall be effected, where they lay down the procedure for effecting service, it cannot be held that the minutest departure from that procedure invalidates the entire service, and it is a matter of fact in every case within the jurisdiction of a Court below to determine what the departure is and whether, notwithstanding that departure from the prescribed procedure, the service has in fact been effected. One example may be given to illustrate what I mean. Order 5, Rule 20, provides that:

Where a person to be served is not found at his address and the Court is satisfied that the defendant is keeping out of the way for the purpose of avoiding service, or that for any other reason the summons cannot be served in the ordinary way, the Court shall order the summons to be served by affixing a copy thereof in some conspicuous place in the Court house and also upon some conspicuous part of the house in which the defendant is known to have last resided or carried on business.

Now the serving officer goes down with the processes and finds that the person upon whom he is directed to effect service is a pardanashin woman; he is unable to find any person who will take the service to her; he is unable to find any male relative and thereupon he himself hangs up the service in the house and hangs up the service in the Court-house. We will assume that he has not taken the precaution in between each of his inquiries to run back to the Court and ask for directions that he may proceed with the alternative coarse to serve the notice on a male relative or hang it up in the house subsequently the fact that he used his best endeavours to effect service failing to find a male relative and failing to have access to the person to be served becomes known. A Court may well in such circumstances find that the officer''s failure to run back and ask the Court for permission to proceed to the second alternative is an immaterial non-compliance with the directions and that the service was in fact effected. Once a Court has found that the service in fact was effected, as it has in this case, the whole matter of the irregularity or regularity of the service is closed and finished. I regret however to have come to this particular decision in this particular case, for certainly the circumstances of the valuation are suspicious in the highest degree. The property in question was 72 acres of raiyati and kasht lands. The valuation put upon it by the decree-holder was Rs. 100 and the property was in fact sold to him for Rs. 300. Had it been possible at this time to reopen the matter, I would have thought that the question of valuation was sufficient evidence to entitle us tO interfere in the sale. Having regard however to the matter of limitation I see no way to do so. In my view the application should be dismissed with costs: hearing fee one gold mohur.

Dhavle, J.

I agree. Dealing with the service of the processes in the case, the notice under Order 21, Rule 22, the notice under Order 21, Rule 54, and the notice under Order 21, Rule 66, the trial Court held that these "processes of the execution case were not properly served." The question of valuation was then examined, and the learned Munsif stated his conclusions in these terms:

In this case I have found that the notice under Order 21, Rule 22 has not been served on the applicant and therefore the sale is null and void.

When the matter came up in appeal the learned District Judge set out certain facts and said that on those facts it was

not possible to say that the notice was not served. The utmost that one can say is that the service was irregular. This also is the finding of the learned Munsif who merely says: "I hold that this notice was not properly served."

It has been contended by Mr. Sarjoo Prasad in his very strenuous arguments that the lower appellate Court made a mistake in saying that the learned Munsif had merely found that the notice was not properly served. I am not impressed by this contention, and I have already set out how the Munsif expressed himself in one way at one place and in another way later on. The learned District Judge was entitled to agree with either of these findings as he thought fit, and he has made his meaning perfectly clear by beginning with the observation that it was not possible to say that the notice was not served. Mr. Sarjoo Prasad has contended that the learned District Judge owed it to this Court as the Court of Revision to make it clear in what respects he found the service irregular. It seems to me that that is a matter of no consequence in the circumstances of the case. The application under Order 21, Rule 90 was made much out of time on the footing that the necessary processes had been suppressed, and the learned District Judge emphatically negatived this contention on behalf of the appellant by stating that he had

not the slightest doubt that the learned Munsif was wrong in finding that the processes in this proceeding were suppressed with the result that the judgment-debtor had no knowledge about the proceeding. At the most, there might have been slight irregularities in the service, but the judgment-debtor undoubtedly knew about the proceedings.

Mr. Sarjoo Prasad has contended that an irregular service is no service at all and that non-service of a notice under Order 21, Rule 22 left the executing Court without any jurisdiction to proceed to sell the property. This contention is opposed to two decisions of this Court: Das Narayan Singh v. Mir Muhammad Yusuf 1921 Pat 145 and F.E. Chrestien v. Jagdeo Prasad Rai 1934 Pat 274. Mr. Sarjoo Prasad has endeavoured to show that these decisions are in conflict with the observations of the Judicial Committee in Raghunath Das v. Sundar Das Khetri 1914 PC 129, but I had occasion to deal with those observations in detail in F.E. Chrestien v. Jagdeo Prasad Rai 1934 Pat 274. Mr. Sarjoo Prasad has urged that this decision conflicts with the observations of Fazl Ali, J. in Smith v. Kailash Chandra 1932 Pat 199. The particular passage from the judgment of Fazl Ali, J., on which Mr. Sarjoo Prasad has relied, is:

I am therefore inclined to think that there was neither a valid notice under Order 21, Rule 22 in this case, nor was the notice which was regarded as such by the learned Subordinate Judge properly served. In this view I agree that the appeal should be allowed with costs.

It does not seem to me that there is anything in this definitely contrary to the decision in F.E. Chrestien v. Jagdeo Prasad Rai 1934 Pat 274, especially as it was admitted in that case that no notice under C. 21, Rule 22 was ever served upon any person: see p. 244 of the report in Smith v. Kailash Chandra 1932 Pat 199.