SUNDRABAI DALICHAND Vs. MORESHWAR MAHADEO GOKHALE

JUDGEMENT

(1.) THIS is an appeal from the order, dated 6-12-1956, passed by the learned Civil Judge (Senior Division ). Jalgaon, below application Exhibit 27 in Special Darkhast No. 39 of 1954, by which the learned Judge rejected the application made by the judgment-debtor No. 6, for setting aside a sale. The application was made under Order 21, rule 90 of the Civil Procedure Code.

(2.) IT is common ground that, in execution of a decree in Darkhast No. 39 of 1954, a property belonging to the appellant has been sold, and the sale was confirmed on 18-4-1955. It is also common ground that respondent No. 2 is the auction-purchaser. The aforesaid application was made by the appellant under Order 21, rule 90 of the Civil Procedure Code for setting aside the sale. The main ground, on which the application was made, was that a notice under Order 21, rule 66, sub-rule (2) of the Civil Procedure Code had not been served upon the appellant. The facts are that, after the order for sale was made under Order 21, rule 64 Civil Procedure Code, an order for issue of notice to the appellant was made. However, that notice was not served personally upon the appellant. Instead the notice was served on one Trimbak Sakharam. The contention of the appellant is that this Trimbak was a total stranger to her, and was not entitled to accept service for and on her behalf. The learned Civil Judge has taken the view that Trimbak was entitled to take service of the notice and the service of notice on Trimbak was a valid service upon the appellant. The appellant is a pardanishin lady. Her evidence was that whenever processes were brought for service to her, she used to direct the bailiff to go to one Goverdhan Jaikisan. The latter was the judgment-debtor No. 1. Therefore, from the aforesaid evidence of the appellant, it is quite clear that the appellant had constituted the judgment-debtor No. 1 to be her attorney or agent for accepting service on her behalf. Therefore, if the notice had been served upon judgment-debtor No. 1, then, it would have been a valid service on the appellant. The aforesaid Trimbak Sakharam appears to be manager of one Jaikisan Rambilas factory. The exact connection of the judgment-debtor No. 1 with the aforesaid factory is not known. But, from the proceedings, it appears that the aforesaid Trimbak was working as the agent in the aforesaid litigation for and on behalf of the judgment-debtor No. 1. Therefore, Trimbak was the agent of the judgment-debtor No. 1. The learned Civil Judge has held that, because of the aforesaid position, which Trimbak occupied vis a vis the judgment-debtor No. 1, and because of the admitted fact that the judgment-debtor No. 1 was constituted by the appellant an agent for the purpose of accepting service, the service on Trimbak was a valid service. I am unable to accept the line of reasoning adopted by the learned Civil Judge. From the aforesaid facts, it is quite clear that Trimbak, so far as the service on the appellant is concerned, was an agent of the appellant. It is well known that an agent is not entitled to delegate his authority to another agent. Under the aforesaid circumstances, in my opinion, Trimbak was entirely a stranger so far as the appellant was concerned, and service on him cannot be accepted as valid service. The learned Civil Judge has attached some importance to the facts that Trimbak appeared in the course of the aforesaid proceedings, asked for several adjournments, and even paid a sum of Rs. 800 towards partial satisfaction of the decree. However, in my opinion, the aforesaid facts have no relevance so far as the question of service on the appellant is concerned. In the first instance, it is important to notice that the record does not leave any doubt that whenever Trimbak appeared in the darkhast, he always appeared as the agent and constituted attorney of judgment-debtor No. 1, At no time, did he purport to appear in the proceedings as the agent of the appellant. However, even if he had purported to appear as the agent of the appellant, I have no doubt whatsoever, that it would have had no effect whatsoever on the question of the validity or otherwise of the service on the appellant. If the service is accepted as good service merely because an unauthorised person, who had accepted service, appears in the course of the proceedings, then, one would be guilty of the fallacy of petitio principii. Under the circumstances, I have come to the conclusion that the record does not leave any doubt that Trimbak was not an agent of the appellant, and he was not entitled to receive service for and on behalf of the appellant. Therefore, in the case, there has been, in fact, no service on the present appellant of the notice under Order 21, rule 66. The contention of the learned advocate for respondent No. 2 was that, in order that a service may be a valid service, it is not necessary that the service should be effected upon an agent of the judgment-debtor. It was contended that under Order 5, rule 16 of the Civil Procedure Code, service can be effected not only upon an agent, but also upon any other person. The submission was that the expression "any other person" in Order 5, rule 16, included a stranger like Trimbak Sakharam. I do not think 1 can accede to the aforesaid submission. In my opinion, the expression "any other person" has reference to those other persons, who have been mentioned in the preceding rules of Order 5, who, according to those rules, are entitled to receive service on behalf of the parties to a litigation. Therefore, unless and until, the learned advocate for respondent No. 2 is able to satisfy me that the aforesaid Trimbak was entitled to accept service for and on behalf of the appellant, under any of the preceding rules of Order 5, I cannot accept service on Trimbak as a valid service on the present appellant. He has failed to do so. Therefore, in my opinion, the appellant has succeeded in proving that the notice under Order 21, rule 66 was not validly served upon her.

(3.) THE second question for consideration in the present appeal is whether non-service of the aforesaid notice is a material irregularity within the meaning of Order 21, rule 90, Civil Procedure Code. The submission of the learned advocate for the appellant is that it is so. In support of this submission, the learned advocate for the appellant has relied on a ruling reported in Jaggan Nath v. Daud, AIR 1923 Lah 592. In that case, it was decided that the failure of the Court to issue notice under Order 21, rule 66, before drawing up the proclamation of the sale, is an irregularity in publishing or conducting the sale within the meaning of rule 90 of Order 21, Civil Procedure Code. This submission was repelled by the learned advocate for the respondents on two grounds. It was firstly contended that, irrespective of the question whether the non-issue of a notice is an irregularity or an illegality, the irregularity or illegality is not one in publishing or conducting the sale. It was, therefore, contended that the provisions of Order 21, rule 90 Civil Procedure Code, did not at all apply to the facts of the present case. The second contention was that non-issue of a notice under Order 21, rule 66 was not merely an irregularity, but it was an illegality, and, therefore, the proper remedy of the present appellant was not an application under Order 21, rule 90, but her proper remedy was to make an application under section 47, Civil Procedure Code, or to file a regular suit for setting aside the sale. In view of the aforesaid two contentions of the learned advocate for the respondents, it is necessary, first of all, to determine the question as to whether non-service of notice upon the present appellant is an irregularity or an illegality. If it is an illegality, then, there is no doubt whatsoever that the provisions of Order 21, rule 90 will not come into play. If however, it is not an illegality, but it is an irregularity, then, the question will have to be considered as to whether the irregularity is one in publishing or conducting the sale. The learned advocate for the respondents drew my attention to the ruling reported in Narayan v. Ramchandra. ILR 1947 Mas 794: (AIR 1948 Nag 177 ). In that case, it was held that an omission to issue notice of sale under Order 21, rule 66 Civil Procedure Code, is an illegality and not merely an irregularity. However, in my opinion, the facts of the present case are distinguishable from the facts of the aforesaid case. This is not a case of total omission to issue a notice under Order 21, rule 66. In the present case, an order was made by the Court to issue a notice under Order 21, rule 66. But what has happened in the case is that that notice was not served upon the present appellant. Therefore, in the present case, we are not dealing with a situation in which the Court has omitted to issue a notice altogether under Order 21, rule 66, but the situation is one in which a notice was so issued, but that notice did not come to be served in accordance with law. In my opinion, therefore, in the present case, it cannot be held that it was an illegality. Having regard to the fact that the Court had ordered that a notice should issue, it is quite clear that the Court did not take any proceedings in the case without ordering that the other side should be called upon to have its say in the matter. The Court has done its duty in the matter. What happened was that the bailiff of the Court served the notice upon the wrong person and the Court subsequently treated the notice upon that wrong person as valid service. In my opinion, therefore, there was no question of any illegality involved. What had, happened was only an irregularity, and, in my opinion, inasmuch as that irregularity has led to the non-appearance of the appellant in the proceedings, it must be regarded to be a material irregularity.