Ramanand and Another vs Bajit Jha and Another

Kulwant Sahay, J.—This is an application in revision by the decree-holders auction-purchasers inviting this Court to revise the order of the Additional Subordinate Judge of Bhagalpore whereby he set aside the order of the Munsif of Madhipura and set aside the auction-sale. The facts are shortly these: Baja Kalauand Sinha and Baja Kirtyanand Sinha of Banaili obtained a rent decree against the opposite-party on the 14th January, 1916. On the 1st tune, 1918, application was made for execution of this decree and after service of the usual notices the holding was sold on the 5th September, 1918, and purchased by the decree-holders themselves. The sale was confirmed. On the 21st November, 1918, and on the 13th November, 1920, about two years after the confirmation of the sale an application was made by the Judgment-debtors for setting aside the sale under the provisions of Order 21, Rule 90 of the Code of Civil Procedure. The Munsif dismissed the application by his order, dated the 4th August, 1921, apparently on the ground that the application was barred by limitation without deciding the case on merits. The judgment-debtors went in appeal against this order to the District Judge who set aside the order of the Munsif and remanded the case for trial on merits. Before the case was heard on remand, one of the decree-holders Baja Kalanand Sinha died on the 22nd September, 1922. Thereupon on the 7tb November, 1922, the judgment-debtors filed an application for substitution of his two sons Kumar Parmacand Sinha and Kumar Krishnanand Sinha, as his heirs. Kumar Krishnaoand Sinha was a minor and is still a minor. No notice appears to have been served upon the two sons of Baja Kalanand Sinha and no guardian was appointed for the minor son Kumar Krishnanand Sinha. Notice appears to have been served on Awadh Bihari Sinha, who was the manager under a power of attorney executed in his favour by the late decree-holder, Baja Kalanand Sinha. At the time of the hearing objection was taken by the other decree-holder, Baja Kirtyacand Sinha, that the application for setting aside the sale could not proceed in the absence of the heirs of the other decree-holder, Raja Kalanand Sinha, and that no notice had been properly served on the heirs and no guardian had been appointed for the minor heir. The learned Munsif gave effect to this objection and, although be found upon the merits that the sale ought to be set aside on account of irregularities in the conduct of the sale and inadequacy of price caused thereby, yet he rejected the application on the ground that the heirs of Baja Kalanand Sinha had not been regularly brought on record and bad not been served with notices.

Against this order the judment-debtors went on appeal to the District Judge. The appeal was ultimately heard by the learned Additional Subordinate Judge, and he held that the provisions in the CPC as to substitution did not apply to execution proceedings and that, at any rate, service upon Awadh Bihari Sinha, the manager of the late Baja Kalanand Sinha, was a good service upon his heirs. He accordingly set aside the order of the Munsif and allowed the application of the judgment-debtors and set aside the sale.

The decree-holders have applied to this Court for revision of this order of the learned Additional Subordinate Judge. The first point taken by the learned Vakil for the petitioners is, that the learned Subordinate Judge has acted illegally in the exercise of his jurisdiction inasmuch as he has made an order setting aside a sale without giving notice to all persons affected by his order. The objection is, in my opinion, well founded and ought to prevail.

The learned Additional Subordinate Judge relies on the cases of Jogendra Chandra Roy v. Syam Das (1907) 36 Cal. 543 and Jagat Thrini Dasi v. Rakhal Chandra Tewary 14 C.W.N. 752.

Those two cases have no bearing on the faots of the present case. In the case of Jogendra Chandra Roy v. Syam Das (1907) 36 Cal. 543 the appeal related to an order rejecting the objections of the judgment-debtor to the execution proceedings u/s 244 of the Code of 1882. The point that was raised before their Lordships in that appeal was that upon the death of one of the judgment-creditors an application for substitution ought to have been made to the Original Side of the High Court of Calcutta which had passed the decree and that in the absence of an order from that court, the District Court to which the decree has been transferred for execution had no authority to proceed with the execution at the instance of the other judgment-creditors, one of whom had obtained by survivorship the interest of the deceased creditor. Their Lordships held that on an examination of the provisions of the Code it was obvious that there was no foundation for this contention. They held that the CPC did not expressly provide for an application for substitution under the circumstances of that case. Their Lordships observed that there was no provision which rendered necessary the actual substitution of the name of the legal representative for the validity of the proceedings in execution. Section 232 of the Code of 1882 merely required that the legal representative should apply for execution of the decree and that his name should be brought on record. This provision was substantially complied with in that case.

The facts of the present case are quite different. Here we are dealing with an application by the judgment-debtor for setting aside a sale under Order 21, Rule 90, and under Order 21, Rule 92, Clause (2) it is provided that no order shall be made setting aside a sale unless notice of the application has been given to all persons affected thereby. There can be no doubt that the heirs of Raja Kalanand Sinha are affected by the order setting aside the sale and under the express provision of the proviso to Clause (2) of Rule 92, Order 21, no order setting aside the sale can be made in their absence.

Similarly, the case of Jagat Tarini Dasi v. Rakhal Chadra Tewary 14 C.W.N. 752 has no application to the facts of the present case.

Therefore the order setting aside the sale in the absence of the heirs of Raja Kalanand Sinha must be set aside.

The next point urged by the learned Vakil on behalf of the petitioners is that the learned Additional Subordinate Judge was wrong in holding that service of notice on the manager Awadh Bibari Sinha was good service as against the heirs of the deceased decree-holder. The learned Subordinate Judge has for this purpose relied on the provisions of Order 5, Rule 14 of the Code of Civil Procedure. This Rule provides the, where in a suit to obtain relief respecting, or compensation for wrong to, Immovable property, service cannot be made on the defendant in person, and the defendant has no agent empowered to accept the service, it may be made on any agent of the defendant in charge of the property. It has been argued that this Rule has absolutely no application to the facts of the present case. In the first place the present proceeding is not a suit to obtain relief respecting, or compensation for wrong to, Immovable property; in the second place, it has not been shown that no service could be effected on the defendant in person or that the defendant had no agent empowered to accept the service, and, in the third place, it has not been shown that Awadb Bibari upon whom the service is said to have been made was an agent of the defendant in charge of the property. He was the manager of the late decree-bolder and there is nothing to show that Awadh, Bibari Sinha was an accredited manager of the heirs of Eaja Kalanand Sinha. I am, therefore, of opinion that the learned Additional Subordinate Judge was wrong in holding that the service upon Awadh Bihari Sinha was a good service so far as the heirs of Kalanand Sinha are concerned. Moreover, the learned Subordinate Judge has overlooked the fact that one of the heirs. Kumar Krishnanand Sinha, is still a minor and that no guardian was appointed for him. Even if the service be held to be a good service so far as Kumar Krishnanand Sinha is concerned, his position is the same as if he was not joined in the application, inasmuch as no guardian was appointed to act for him in the present proceeding. On these grounds the order of the learned Subordinate Judge must be set aside.

The question then is as to whether the order of the learned Munsif should be confirmed. In my opinion, having regard to the findings of the learned Munsif that the sale was bad on account of irregularities in the execution proceeding and inadequacy of price, the case should go back to the Munsif for disposal according to law after appointing a guardian for Kumar Krishsanand Sinha and serving the proper notices on the heirs of Raja Kalanand Sinha.

There will be no order for costs.