Ramlal Sahu and Others vs Mt. Ramia and Another

Das, J.—This appeal and the application in revision are directed against the decision of the learned Additional District Judge of Bhagalpur, dated 15-5-1946, by which he has reversed the decision of the learned Subordinate Judge of Bhagalpur, dated 22-2-1946, and set aside a sale held in execution of a mortgage decree. The decree-holders are the appellants before us, and the respondents are Mt. Ramia, widow of Bhagirath Mandal, a deceased judgment-debtor and Gobind Mandal, another judgment-debtor. The principal question of law which arises for decision is 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 a notice) that is, whether such irregularity goes to the root of the jurisdiction of the Court executing the decree and makes a sale held in execution wholly ineffective and void or is a mere irregularity which does not affect jurisdiction but renders the sale voidable by the taking of appropriate proceeding within the time allowed by law. The appeal first came before a Division Bench of this Court, and has come to this larger Bench for decision, as the Division Bench before which the case first came entertained a doubt about the correctness of the earlier Bench decision in Durga Singh v. Sugambar Singh AIR 1941 Pat 481 regarding the effect of non-service of a notice under Order 21, Rule 22, Civil P.C.

The facts out of which the question has arisen are the following. The appellants obtained a preliminary mortgage decree on 30-8-1939, and a final decree on 10-5-1941, against six persons,--Dwarika Mandal, his sons Bhagirath, Ganpat, Gobind and Shankar (minor), and grandson Mahendra. An application for execution of the decree was made on 7-4-1942, and a notice under Order 21, Rule 22, Civil P.C. was ordered to be issued on all the judgment-debtors. This notice appears to have been served on 11-6-1942. In the meantime, that is, on 9-5-1942, Dwarika Mandal filed an objection u/s 47, Civil P.C. On 1-7-1942, a notice was issued u/s 13, Bihar Money-lenders Act for the valuation of the property. This notice was served on all the judgment-debtors except Bhagirath who was reported to be dead. On 11-8-1942, the decree-holders applied for the substitution of the widow Mt. Ramia, the principal respondent before us, and a minor son Naresh under the guardianship of his mother in place of the deceased judgment-debtor Bhagirath. This was allowed, and a fresh notice under Order 21, Rule 22, Civil P.C., was issued against the newly added judgment debtors. According to the decree-holders, this notice was served, and as the mother did not appear, a pleader-guardian was appointed for the minor Naresh. On 7-1-1948, the objection of Dwarika Mandal u/s 47, Civil P.C., was dismissed for default. Evidence was then given on behalf of the decree-holders in the valuation matter and the valuation of the property was fixed at Rs. 1090. The property consisted of a house and some lands in the town of Bhagalpur. A sale proclamation then issued fixing the sale for 26-3-1943. Dwarika Mandal filed another objection u/s 47, Civil P.C. on 25-3-1943, and asked for an adjournment of the sale. On 7-4-1943, a petition was filed purporting to be on behalf of all judgment-debtors waiving the right to a fresh sale proclamation and the sale was postponed to 7-5-1943. On 6-5-1943, Dwarika Mandal''s second objection was dismissed, and the sale was completed on 10-5-1943, and the property sold for Rs. 1300. On 11-6-1943, the sale was confirmed. On 9 3-1945 about one year and 9 months after the sale the respondents filed an application under Order 21, Rule 90, Civil P.C., on the usual grounds of fraud and irregularity in the service of processes in execution and consequent inadequacy of the price fetched at the sale and substantial injury to the respondents. To avoid the bar of limitation the respondents alleged that they came to know of the sale on 24-2-1945.

The learned Subordinate Judge who dealt with the application in the first instance held that the application was barred by time, and he found against the present respondents on the allegations of (a) fraud, (b) non-service of processes, (c) date of knowledge and (d) inadequacy of price or substantial injury. The learned District Judge has found on appeal that the notice under Order 21, Rule 22, Civil P.C. on Mt. Ramia was not properly served. The service report of the peon was to the following effect (I am quoting from the judgment of the learned Judge):

Met Mt. Rajia, guardian of the minor, and made over the notice to her. After understanding the contents of the notice, she refused to take it on behalf of the minor and grant a receipt. It is, therefore, hung up in the east facing thatched house.

The learned Judge found that Mt. Ramia was not called Mt. Rajia, and the aforesaid report of the peon did not show a proper service of the notice on Mt. Ramia. Relying on the decision in Durga Singh v. Sugambar Singh AIR 1941 Pat. 481, he held that the sale was wholly ineffective, and as Article 181, Limitation Act applied, the application was not barred by time. He also doubted the service of the sale proclamation, and held that the application was filed within 30 days of the date of knowledge alleged by Mt. Ramia. The learned District Judge did not say anything about respondent 2, Gobind Mandal, and decided the case mainly on his finding that the service of the notice on Mt. Ramia was not proper service and, therefore, the sale was a nullity and Article 181, Limitation Act, applied.

Learned Counsel for the respondents has contended before us, by way of a preliminary objection as he put it, that the appeal is concluded by the finding of fact that there has been a fraudulent suppression of processes which kept Mt. Ramia out of knowledge of the sale, and there can be no question of limitation when she filed the application within 30 days of the date of her knowledge. We have very carefully examined the appellate judgment, but can find no clear finding of fraud such as would attract the operation of Section 18, Limitation Act. The learned Subordinate Judge who dealt with the application in the first instance came to the clear findings that there was no fraud on the part of the decree-holders, that Mt. Ramia lived in the same house as the other judgment-debtors (who were joint) and knew of the execution proceedings, that her allegation of knowledge of the sale from one Bala Mahto was false, and that Mt. Ramia was merely put up to file the application, though the real persons were the other judgment-debtors who had appeared and unsuccessfully contested the application for execution at the earlier stages. The learned District Judge does not find when and how the fraud was committed. He simply finds that Mt. Ramia was not called Mt. Rajia, that there was no proper service of the notice under Order 21, Rule 22, Civil P.C., on her, and as regards the sale proclamation, he expresses a doubt if it was actually served on the spot. Then, the learned Judge goes on to express himself as follows:

Moreover, when fraud has been established in this case to have been practised upon her by the decree-holder by suppressing the notice and the sale proclamation, it is for the decree-holder to show satisfactorily and conclusively that she had knowledge of the sale earlier than what she alleged.

This is no legal finding of fraud; rather it assumes what has to be proved. A mere doubt, expressed earlier by the Judge, if the sale proclamation was served on the spot, a finding that Mt. Ramia is not called Rajia and that the notice on her was not properly served--none of these amount to a legal finding of fraud, and it is difficult to understand what the learned Judge means when he says that "when fraud has been established in this case, etc." Dealing with the question if Mt. Ramia was living in the same house as the other judgment-debtors, the learned Judge has committed an error of record when he says that there is no evidence in support of it. In my view, the learned District Judge has not properly displaced the finding of the learned Subordinate Judge that no such fraud has been established as would entitle the respondents to the extension of the period provided by the Limitation Act.

I now come to the principal question for decision, viz, the question as to the effect of the improper or irregular service of the notice under Order 21, Rule 22, Civil P.C., on Mt. Ramia. The main reason why the learned District Judge finds that the notice on Mt. Ramia was not served is the mention of the name Rajia in the peon''s report. There is, I think, a good deal to be said in favour of the view of the learned Subordinate Judge that the word "Rajia" in the peon''s report was a mistake for "Rmia," though the decree-holders foolishly tried to make out that Ramia was also called Rajia. It is not disputed that the notice was issued to Mt. Ramia for self, and as guardian of her minor son. Assuming that the finding of the learned District Judge that the notice was not properly served on Mt. Ramia is correct, does it make the sale wholly ineffective, hull and void? The question has to be considered with reference to Section 50, and Order 21, Rule 22, Civil P.C. Section 50(1), is in the following terms:

Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased.

Order 21, Rule 22(1), as amended by this Court in 19S6, reads thus:

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.

It is now well settled that after the death of a judgment-debtor in a pending execution proceeding, the decree-holder may proceed either by presenting a fresh application for execution or asking for leave to continue the same proceeding after substituting the legal representative; in either case notice would be required under Order 21, Rule 22, Civil P.C., See Smith v. Kailash Chandra AIR 1932 Pat. 199 and Ajablal v. Haricharan AIR 1945 Pat. 1. There is no doubt, therefore, that Mt. Ramia as the legal representative of the deceased judgment-debtor Bhagirath was entitled to a notice under Order 21, Rule 22, Civil P.C., and on the authority of the decision of their Lordships of the Judicial Committee in Raghunath Das v. Sunder Das AIR 1914 P.C. 129, such:

A notice was necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor.

Whatever doubt there may have been previously as to the effect of a failure to issue such a notice, the question has not been settled, so far as this Court is concerned, by the Pall Bench decision in Ajablal v. Haricharan AIR 1945 Pat. 1. In the case before us, there has been no failure to issue a notice under Order 21, Rule 22, Civil P.C. Such a notice was issued and served, but not properly served on Mt. Ramia. The question of the effect of the irregularity in service of a notice under Order 21, Rule 22, Civil P.C., has been considered by this Court more than once. In Fakhrul Islam v. Bhubaneshwari Kuer AIR 1929 Pat. 79, the judgment-debtor was not found and his brother having refused to accept the notice, it was stuck on the northern portion of the house. The finding was that the service was not proper. Dealing, with that finding it was observed:

An irregularity in the service of a process is quite a different thing from the absence of the issue of any such process. The one relates to procedure, and the other goes to the root of the jurisdiction of the Court.

In Fakhrul Islam v. Bhubaneshwari Kuer AIR 1929 Pat. 79, a notice under Order 21 Rule 22, Civil P.C., was issued, but was suppressed; thereafter, the judgment-debtors appeared and raised objections to the execution of the decree as well as to the validity of the sale; the objections were heard and disposed of and then the decree-holder was directed to take further steps. In those circumstances it was held that it was not necessary to serve a fresh notice under Order 21, Rule 22, Civil P.C., and the notice issued before was sufficient to give jurisdiction to the Court. In Smith v. Kailash Chandra AIR 1932 Pat 199, the two main questions were--first, that there was no notice under Order 21, Rule 22, Civil P.C., and secondly, that such notice as was issued was not properly served. Wort J., who gave the leading judgment, held that no such notice as is contemplated by Order 21, Rule 22, was issued, the notice served being merely a notice for substitution. Fazl Ali J. (as he then was), also agreed with Wort, J. that the notice issued in that case was not a notice under Order 21, Rule 22, Civil P.C. He went on to say, however, that assuming that it was such a notice he was not at all sure that on the materials on the record it could be held that the notice was properly served. The final conclusion arrived at by him was expressed thus:

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 view of the finding that there was no valid notice under Order 21, Rule 22, Civil P.C., in that case, the question of proper service did not arise. The observations regarding service of the notice were not, therefore, the basis of the decision in Smith v. Kailash Chandra AIR 1932 Pat 199. In F.E. Chrestian v. Jaideo Prasad AIR 1934 Pat 274, the question was considered at great length, and following Das Narayan Singh v. Mir Mahomed Yusuf AIR 1921 Pat. 145 , it was observed that an irregularity in the service of a process is quite a different thing from the absence of the issue of any such process. The notice under Order 21, Rule 22, Civil P.C., was served in that case in a village where the judgment-debtor did not reside, and the finding was that the service was irregular. It was held; however, that the irregularity in the service of the notice did not go to the jurisdiction of the executing Court. There are, however, certain observations in F.E. Chrestien Vs. Jaideo Prasad Rai, regarding the mandatory provisions of Order 21, Rule 22(1), Civil P.C., as to the effect of the failure to issue a notice under that Sub-rule which have lost much of their force in view of the Pull Bench decision in Ajab Lal Dubey and Another Vs. Hari Charan Tewari @ Hari Tewari and Others, But the decision still stands good, so far as the question of the effect of an irregularity in service is concerned. In Rajendra Prasad Vs. Debi Parsad and Others, the notice was directed to the sons of one Bhagbat Prasad under the guardianship of a guardian appointed by the Court. These sons, though major, did not object to the appointment of a guardian-ad-litem, and permitted the Court to proceed as if they were in fact minors. In those circumstances, it was held that the provisions of Order 21 Rule 22, Civil P.C., had been complied with, and there was no lack of jurisdiction.

Then comes Durga Singh and Others Vs. Sugambar Singh, , which was a. Letters Patent appeal. One of the judgment-debtors had brought a suit for a declaration that the sale of certain property in execution was not binding on him, and for recovery of possession for the same together with mesne profits. The plaintiff claimed that the execution was not binding on him by reason of the fact that it was a sale wholly without jurisdiction, as, according to the plaintiff, no notice under Order 21, Rule 22, Civil P.C., was served upon him. The lower appellate Court had held as a fact that the executing Court issued a notice, but it was an improper one. Further, it was found that such notice was never served upon the plaintiff. These findings of fact were accepted as correct, and relying on Raghunath Das v. Sunder Das AIR 1914 P.C. 129, it was observed as follows:

In my view, mare issuing a notice is not sufficient. The. Court must be satisfied that the notice has been served on the person whom the Court regards as the proper recipient of the notice. In the present case as no notice was served at all, the case clearly comes within the decision in Raghunath Das v. Sunder Das AIR 1914 PC 129, and, therefore, the sale was wholly ineffective against the plaintiff.

Referring to this decision Chatterjee, J., who delivered the leading judgment in Ajab Lal Dubey and Another Vs. Hari Charan Tewari @ Hari Tewari and Others, , observed as follows:

One noticeable feature about this case is that no objection appears to have been raised to the maintain, ability of the suit on the ground that it was barred u/s 47, Civil P.C. Nor does it appear that their Lordships'' attention was drawn to the earlier decisions of this Court or the decisions of other High Courts.

Learned Counsel for the appellants has contended before us that Durga Singh and Others Vs. Sugambar Singh, , in so far as it lays down that an irregularity of service affects the jurisdiction of the Court and makes the sale wholly ineffective, goes beyond the authority in Raghunath Das v. Sunder Das AIR 1914 PC 129, which it purports to follow. In my opinion, this contention is correct. As has been pointed out in many decisions, the question of the effect of an irregular service of notice did not arise in Raghunath Das v. Sunder Das AIR 1914 PC 129. There, the property of the judgment-debtor vested in the official assignee under the-Insolvency Act, 1848, and the judgment debtors who had previously attached certain part of the property obtained an order that notice should issue to the official assignee to show cause why he should not be substituted for the judgment-debtors as a party, and this notice was given, It was clearly found that the notice issued to the official assignee was not a proper notice u/s 248, Civil P.C., which section of the old Code corresponds to Order 21, Rule 22, of the new Code. Amongst other grounds, the decision rested on the finding that there was no notice under Order 21, Rule 22, Civil P.C. That decision does not go so far as to lay down that an irregularity in the service of the notice would affect the jurisdiction of the executing Court and make the sale wholly ineffective. Learned Counsel for the respondents has not been able to bring to our notice any other decision, nor have I been able to find any decision, which goes to the extent of laying down that an irregularity in the service of a notice under Order 21, Rule 22, Civil P.C., goes to the root of the jurisdiction and makes the sale wholly ineffective. There are certain observations in Smith v. Kailash Chandra AIR 1932 Pat. 199 which may inferentially support that view; but as I have already pointed out, those observations did not form the basis of the decision in T. Smith and Another Vs. Kailash Chandra Chakravarty and Others, . The question again came up for consideration in Shyamnandan Sinha and Others Vs. Naurangi Singh and Others, where the notice under Order 21, Rule 22, Civil P.C., was presented to one Jamuna Singh, the eldest member and karta of the joint family, and on his refusal to accept it was hung on the wall of the dwelling house. The sons of the deceased judgment-debtor Daroga were substituted as majors, though they were, in fact, minors under the guardianship of their uncle Jumuna Singh. The contention raised on behalf of these minor sons of the deceased judgment-debtor was that there was failure to serve the notice under Order 21, Rule 22, Civil P.O., and the entire sale was without jurisdiction. Dealing with this contention it was observed as follows:

This however, was not a case of failure to serve the notice. The notice was certainly served and the service, as the learned Munsif has observed, was a good service upon an adult male member of the family under Order 5, Rule 15, Civil P.C. The service was merely irregular, as the notice was served upon these applicants as majors whereas they were in fact minors. But served it was and there was at most an irregularity, not an absence of service. The case is similar to the case in F.E. Chrestien Vs. Jaideo Prasad Rai, where it was held that a mere irregularity in the method of service did not go to the root of jurisdiction. In so far as it held that, this case has not been dissented from in the Full Bench case just referred to, though no doubt it has been distinguished.

It would thus appear from a review of the authorities that except in Durga Singh v. Sugambar Singh AIR 1941 Pat. 481 there is no decision which says that an irregularity in the service of a notice under Order 21, Rule 22, Civil P.C., makes the sale wholly ineffective, on the contrary, there are decisions, given both before and after Durga Singh and Others Vs. Sugambar Singh, which lay down that an irregularity in the service of a notice under Order 21, Rule 22, Civil P.C. does not affect the jurisdiction of the Court executing the decree, and does not make the sale wholly ineffective. In my judgment this latter view is the correct view.

Learned Counsel for the respondents has contended before us that when a decision is given by the executing Court as to the propriety of the service of a notice under Order 21, Rule 22, Civil P.C., the decision, though wrong, will be binding and will give the Court jurisdiction to proceed further with the execution. It is stated that this inference follows from the decision of their Lordships of the Judicial Committee in Mallikarjun v. Karhari. (1900) 27 I.A. 216. It is contended that there being no decision of the executing Court-in this case to the effect that the service of notice on Mt. Ramia was proper service, the principle laid down in Mallikarjun v. Karhari. (1900) 27 I.A. 216 would not apply. But the executing Court must have accepted the service of the notice on Mt. Ramia as sufficient, or else it would not have proceeded to appoint a pleader guardian for her minor son on her non-appearance in spite of the notice. Apart from authority, I do not see how the correctness or otherwise of the method of service can affect the question of jurisdiction. Order 21, Rule 22, Civil P.C., requires that a notice should issue requiring the judgment-debtor to show cause why the decree should not be executed against him. It is, no doubt, the duty of every Court to see that a notice issued by it is served in the manner required by law. This, however, is not a matter of jurisdiction: it is a matter between the Court and its officers. If there is any irregularity of service, the person aggrieved is not without a remedy, and it cannot be said that the object of the rule is frustrated. The person affected by the irregularity may apply for setting aside the sale by taking appropriate proceeding within the time allowed by law. There may be a case where the party entitled to a notice under Order 21, Rule 22, comes to know of the execution and appears to contest it in spite of a defect in the method of service. Can it be said in such a case that the object of the rule is frustrated and that the notice must again be served properly? As Rankin C.J. had observed in Chandra Nath Bagchi Vs. Nabadwip Chandra Dutt and Others, , to hold so would be "to push the abstract logic of the case in Raghunath Das v. Sunder Das AIR 1914 P.C. 129 to the ridiculous extreme," and would be "piling unreason upon technicality."

For the reasons given above, I am of the view that the learned District Judge was in error when he held that the sale in this case was wholly ineffective, because of the irregularity in the service on Mt. Ramia and that Article 181, Limitation Act, applied. As the sale was merely voidable, the period of limitation applicable is that prescribed by Article 166, Limitation Act, namely, 30 days from the date of the sale. I have already observed that the learned District Judge had not come to any legal finding of such fraud as would attract the operation of Section 18, Limitation Act, The application was filed about a year and nine months after the sale, and was clearly barred by time.

Learned Counsel for the appellants has also addressed us on the question if the entire sale is liable to be set aside on the non-service of the notice on the legal representative of one of the judgment-debtors. It is, however, unnecessary for us to decide this question in the view which we have taken of the effect of the irregularity in the service of the notice on Mt. Ramia. In our view, the effect of such irregularity is to make the sale voidable and not void.

As held in Das Narayan Singh v. Mir Mahomed Yusuf AIR 1921 Pat 145, although no second appeal lies from an order passed under Order 21, Rule 90, on an application under that rule to set aside a sale on the ground of irregularity or fraud in publishing or conducting the sale, yet if the application is also based on fraudulent suppression of the notice required by Order 21, Rule 22 a second appeal does lie, and in that appeal the High Court is competent to deal with the application under Rule 90. The present appeal is, therefore, competent. As an appeal lies, the application in revision is incompetent. The result, therefore, is that the appeal succeeds and is allowed, the decision of the learned District Judge is set aside and that of the learned Subordinate Judge is restored. The appellants would be entitled to their costs throughout. The application in revision is incompetent, and is dismissed.

Agarwala Ag. C.J.

I agree.

Imam, J.

I agree.