Sunder Ram and Others vs Harangi Ram and Others

Wort, J.—This miscellaneous appeal and the application in revision arise out of what has been described in some cases an application u/s 47, Civil P.C., and Order 21, Rule 90. Such applications have been so described to get over the objection that no second appeal lies to this Court.

There are a number of decisions of this Court, one in particular of the late Sir Jwala Prasad, relying upon the decisions of other High Courts to the effect that such an application involves Order 21, Rule 22 and therefore becomes an application u/s 47 and a second appeal lies. Now, the decision of the Courts below, so far as the question of Order 21, Rule 90 is concerned, is against the appellant judgment-debtor, and indeed as regards necessity of the notice under Order 21, Rule 22 the decision is also against the judgment-debtor on the footing that the judgment-debtor had notice of the execution proceedings by reason of the notice under Order 21, Rule 66.

I am pressed with the contention that, as no notice was issued under Order 21, Rule 22, the Court had no jurisdiction to sell the property and no title was given to the purchaser who happens to be the decree-holder in this case.

The well-known decision in Raghunath Das v. Sundar Das AIR 1914 P.C. 129 is relied upon in which Lord Parker of Waddington in delivering the opinion of their Lordships of the Judicial Committee stated that a notice under Order 21, Rule 22 in the circumstances in which the Code requires it goes to the root of the jurisdiction. But it must be remembered that in that case the contest was between two purchasers, one the purchaser from the Official Assignee who had had notice of the execution under Order 21, Rule 22 and the other the purchaser in the execution proceedings which had proceeded without the necessary notice under Order 21, Rule 22. There is no suggestion of a finding of fact that the Official Assignee knew of the execution, although in the course of the case it was stated that on a certain date the Subordinate Judge there ordered that notice should issue to the Official Assignee to show cause why his name should not be substituted in place of the judgment-debtor. From that it might have been argued (although it does not appear to have been argued) that the Official Assignee was aware of the execution. What would have resulted had that argument been put forward I do not know.

The case has been considered by the Calcutta High Court in Chandra Nath Bagchi Vs. Nabadwip Chandra Dutt and Others, in circumstances precisely similar to those existing in this case, that is to say, in execution proceedings, arising out of a mortgage decree, and as pointed out by the learned advocate appearing on behalf of the respondent, in such a case the jurisdiction to sell is not given by any notice under the CPC but is given by the decree itself, which in my judgment makes a substantial difference.

The learned Chief Justice of the Calcutta High Court Sir George Rankin in discussing Raghunath Das v. Sundar Das AIR 1914 P.C. 129 does not attempt to distinguish it on the footing that the matter before him was the execution of a mortgage decree, but he makes this observation:

It is quite unnecessary to push the abstract logic of the case of Raghunath Das v. Sundar Das AIR 1914 P.C. 129 to this ridiculous extreme.

The ridiculous extreme to which the learned Chief Justice referred was the argument of counsel to the effect that as no notice had been issued under Rule 22 of Order 21 the sale was void. Then Sir George Rankin proceeds to rely upon the observation of Kulwant Sahay, J. in Fakhrul Islam v. Bhubaneswari Kuer AIR 1929 Pat. 79 to this effect:

All that Order 21, Rule 22 requires is that an opportunity should be given to the judgment debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed.

Sir George Rankin refers to that statement with approval. Although one must assume that in the course of the argument, in that case some authorities were referred to, the report of the case is completely silent as regards that matter. I feel constrained to follow the decision of the Calcutta High Court in Chandra Nath Bagchi v. Nabadwip Chandra AIR 1938 Cal. 476 to the effect that all that is required is that a notice is necessary.

In this connexion I must make one observation which seems to me to be very pertinent and that is that in the objection petition under Order 21, Rule 90 no mention was made whatever of the absence of notice under Order 21, Rule 22, nor was any mention made in the notice of appeal to the lower Appellate Court, It appears to have been mentioned for the first time in the course of the argument which has been dealt with in the manner I have stated already by the Appellate Court''s judgment.

In my opinion absence of notice in this particular case was not fatal and did not invalidate the sale. For those reasons I come to the same conclusion as that arrived at by the learned Judge in the Court below.

The appeal is therefore dismissed with costs as is the civil revision application.