SHANTIBAI Vs. MANIKCHAND

JUDGEMENT

(1.) THIS appeal by one of the judgment -debtors Shantabai arises out of execution proceedings initiated by the decree holder in respect of which a preliminary decree on the basis of a mortgage deed was passed on 19 -11 -59 and final decree on 27 -3 -62. It is not disputed that the sale was made absolute on 11 -8 -65 and a sale certificate was granted in favour of the auction -purchasers Madhav, Shriram, Jugal Kishore and Suryakant (who will hereinafter be referred to as auction purchasers) on 14 -8 -65. The objection made by Shantabai under S.47 C.P.C. out of which the present appeal arises was filed on 25 -11 -69 on the ground that the sale is a nullity in as much as no notice was served upon her either under O.21. R.22 or under O.21. R.66 C.P.C. The executing Court did not issue notice of this application either to the decree -holder or to the auction -purchasers, but dismissed it summarily by its order dated 5 -12 -69 on the ground that notice -under O.22. R.66 had been duly served upon the appellant. Aggrieved by the order of the learned Additional District Judge. Gwalior. Shanta Bai has filed this miscellaneous appeal under S.96 read with S.47 C.P.C.

(2.) LEARNED counsel for the appellant has strenuously urged that the lower Court was not justified in rejecting the objection summarily without notice to the opposite party and without recording evidence on the points raised in the objection It is argued that no notice under O.22. R. 66 C.P.C. was served upon the appellant and, therefore, the sale is a nullity. In this connection it has also been urged that the substituted service affected on the appellant by publication of notice in the newspaper 'Navprabhat' was illegal inasmuch as there is nothing on the record to show that it was not possible to serve the notice on the appellant personally at Ratlam where she was residing with her son.

(3.) BEFORE embarking upon the consideration of the contentions raised on behalf of either party, I may observe that the appellant's case rests purely on' want of notice under O.21, R.66 C.P.C. on the appellant. Consequently, before addressing myself to other objections advanced on behalf of the auction purchasers, I would deal with this point first.