BANDU HARI Vs. BHAGYA LAXMAN

JUDGEMENT

(1.) THE material facts, so far as this appeal is concerned, are these. In 1939 respondent 3 filed a suit against respondents 1 and 2 for possession of the suit property which he had previously purchased. A consent decree was passed in that suit on 24-1-1941. By the compromise, respondent 3 gave up his claim to the suit land, while respondent 1, who it appears was the contesting defendant, agreed to pay him a sum of Rs. 125 ana interest thereupon in four equal instalments, the first instalment being payable in December 1941. The decree placed a charge on the suit property and provided that in case of default in the payment of any instalment, respondent 3 could recover the amount by sale of the suit property. As the first two instalments, which fell due in December 1941 and December 1942, were not paid, respondent 3 filed a darkhast for recovering the amount of these instalments by sale of the suit property. This darkhast was filed on 12-4-1943, that is, more than two years after the date of the decree. Order 21, Rule 22, Civil P. C. , provides:

(2.) IN 'raghunath Das v. Sundar Das', AIR 1914 PC 129 (A) the Privv Council held that where a sale was held without the issue of a notice under Section 248 of the old Code, which corresponded to Order 21. Rule 22 of the present Civil P. C. , the sale was void; see also the Full Bench decision of the Madras High Court in 'rajagopala Ayyar v. Ramanujachariar', A. I. B. 1924 Mad 431 (FB) (B ). The view taken in these cases was that a notice under this rule is necessary in order that the Court should obtain jurisdiction to sell the property in execution. 'baghunath Das v. Sundar Das (A)', was considered by the Calcutta High Court in -- 'chandra Nath v. Nabadwip Chandra', A. I. R. 1931 Cal 476 (C ). In that case no notice under order 21, Rule 22, was issued to the judgment-debtors, but a notice under Order 21, Rule 66, was issued to them. The judgment-debtors appeared and raised objections to the valuation of the property, which was to be mentioned in the proclamation of sale. After these objections had been disposed of, the judgment-debtors contended that the sale could not proceed, because no notice under Order 21 Rule 22, had been given to them. This objection was overruled and the execution was allowed to proceed. in his judgment Rankin C. J. stated that it was

(3.) THE principle underlying these cases, with which we agree, is that even though a notice under Order 21, Rule 22, Civil P. C. , which has been enacted for the benefit and protection of judgment-debtors, has not been issued to a judgment-debtor, if he actually appears in execution proceedings and raises various objections, the object of giving him a notice under Rule 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved, that if he does not then object to the execution on account of the failure to issue such a notice, he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such notice had not been issued. In this case, the judgment-debtor was given notices by the Collector. He was therefore, fully aware of the execution proceedings and had an opportunity to appear in these proceedings and object to the execution or to satisfy the decree. He actually appeared before the Collector more than once, 'claimed the benefit of the Bombay Small Holders Relief Act and also asked for and was given time to pay the amount due from him. The object of giving him a notice under Order 21, Rule 22, was, therefore, in fact achieved. It is true that he did not appear before the Court but only before the Collector, but we do not think that that makes any difference. He raised certain objections, e. g. that he was entitled to the benefits, of the Bombay Small Holders Relief Act. He could also have objected, if necessary, by an application to the Court, to the sale being held without the issue of a notice to him under O. 21, R. 22. But he did not do so. It may, therefore, reasonably be presumed that he had no other contentions to raise. He must consequently be held to have waived the notice under the above rule and cannot now be heard to say that the sale is invalid for want of this notice.