MOBARAK ALI Vs. DINABANDHU SAHU

JUDGEMENT

(1.) THESE two miscellaneous appeals arise out of execution proceedings in execution of a decree obtained by the Cuttack Bank Limited against Kashinath Das and others for a sum of Rs. 5,000/ - and odd, the decree being dated 27 -7 -1939. In Misc. Case NO. 116 of 1947, out of which M. A. 93 of 48 arises, Rabindranath Das, alleging to be the adopted son of Golak Chandra Das, deceased and Judgment -debtor No. 6 Gourang Gharan Das filed an objection under Section 47, Civil P. C., that the sale which took plaoe on 5 -5 -1947,was void against the interest of the deceased Golak Chandra Das, who died on 15 -11 -1946. In Misc. Cases Nos. 137 and 138 of 47 out of which M. A. 92of 43 arises, purchasers of the portions of the mortgaged property on 8 -3 -1941, made an appli -cation under Section 47, C. P. C., and also under Order 21, Rule 90, C. P. C., alleging the sale to be voidand also with a prayer for setting aside the sale on the allegation that in the execution proceedings on the application of the judgment -debtors under the provisions of the Orissa Money -Lenders Act, an order was passed on 15 -1 -1943, allowing the judgment -debtors to pay on instalment, but the same execution proceeding was allowed to be proceeded with and the sale took place in the same execution proceeding without fresh service of notice under Order 21, Rule 22, C. P. C., and as such, the sale is void. They have also made (application?) to bring the case under Order 21, Rule 90, C. P. C. On the petition of Rabindranath Das, the learned Court below found that Rabindranath happened to be the adopted son of Golak, and relying upon the decision of the Patna High Court, reported in - -'Ajab Lal Dube v. Haricharan', AIR 1945 Pat 1 (A), he held the sale as void against the interest of the deceased judgment -debtor Golak Chandra, inasmuch as a fresh notice under Order 21, Rule 22 had not been issued. On the petition of the purchasers, the Court below, relying upon the decision of the Patna High Court reported in the same volume, that is, - - 'Rampal Singh v. Uditnarain Panda', AIR 1945 Pat 76 (B), held that after there was a default in the payment of the instalment, the decree -holder ought to have started a fresh execution case and he not having taken a fresh notice tinder Order 21, Rule 22, the sale must be declared as void. But regarding the petition under Order 21, Rule 90 the Court below rejected it inasmuch as it was filed long after the period prescribed for limitation, it is very unfortunate that the learned Court below has missed the new amendment of the Patna High Court of Order 21, Rules 22, and 22 -A dated 14 -5 -1947. The amendment runs as follows :

(2.) MR . Mohanty, appearing on behalf of the judgment -debtors in both the cases, urges that on account of the passing of the instalment order on 15 -1 -1943, a new decree was passed in the eye of law and the previous execution proceeding must be deemed to have terminated and in the absence of a fresh execution petition under Order 21, Rule 11, the present sale held in the previous execution case is to be declared as void. He strongly relies upon the above quoted decision reported in - - 'AIR 1945 Pat 76 (B)'. He relies upon the observation of Dhavie, J. which runs to tne effect :

(3.) ON a consideration of these reasons, therefore, we find that the provisions of the new amendment of Order 21, Rules 22 and 22A will apply to the sale held in the present case. We will further observe that Mr. Mahanty has not been able to 'satisfy us that he has suffered any sustantial injury on account of non -issue of notice under Order 21, Rule 22. His only suggestion was regarding the valuation of the suit properties; but it has been found by the lower Court that on account of the legislative measures taken by the Government for abolition of zamindaries, the suit property, which is a Tousi, cannot fetch better value than it has fetched by virtue of the present sale.