RAM GOBIND RAI Vs. SHAHABAD DISTRICT BOARD

JUDGEMENT

(1.) This miscellaneous appeal has been preferred by the judgment-debtor against the concurrent judgment of the courts below rejecting the objection under Section 47 read with Section 151 of the Code of Civil Procedure (hereinafter referred to as "the Code").

(2.) A money decree was obtained on the 22nd of April, 1952, by the respondent against the appellant from the Court of 2nd Additional Subordinate Judge, Arrah. in M. S. 233/4 of 1950/51. It appears that thereafter the decree was transferred to Balliya Court. Accordingly an execution case was filed on the 17th of March, 1962. The said execution case was dismissed for default on the 30th of May, 1962, and thereafter, on the 5th of March, 1964, a fresh execution case was filed at Arrah which was registered as execution Case No. 5 of 1964. Certain properties which were mentioned in the execution petition were attached and the execution proceeded as against these properties. It appears that thereafter on 21-4-1965 some of the properties were deleted and some new properties were added in the execution petition. Thereafter the appellant filed an objection under Section 47 read with Section 151 of the Code on the 5th of August, 1967, alleging that he had no knowledge of the execution case previously and he had come to know of the same only 22 days ago. He raised various objections in the said objection petition regarding the maintainability of the execution petition. He also pleaded that the execution case was barred by limitation. The said objection was recorded as Miscellaneous Case No. 21 of 1967. In that case, both parties adduced evidence. The trial Court, by its order, dated the 21st of March, 1970, dismissed the said execution case after giving a finding that the execution case was not barred by limitation and that the execution would proceed against the newly added properties. It also gave a finding though not very clear, that notice under Order 21, Rule 22 of the Code was served upon the appellant. As against the aforesaid order, the appellant preferred miscellaneous appeal which was registered as Miscellaneous Appeal No. 44/2 of 1970. The said miscellaneous appeal was dismissed by order, dated the 18th of January, 1972. Hence, the present miscellaneous second appeal.

(3.) Mr. Chandra Bhushan Sahay, learned counsel appearing on behalf of the appellant, has contended that there is no finding that notice was served under Order 21, Rule 22 of the Code upon the appellant in the execution proceeding and therefore all subsequent proceedings are illegal and void. In my opinion, this contention has no substance. It appears that this point of notice was raised in the trial Court and the trial Court has given a finding, as already stated above by me, that there was a service of notice upon the appellant. Thereafter, it appears that this point was not raised in the lower appellate Court. Only two points, as stated in that judgment, were raised before that Court. Hence, at the second appellate stage, it is not permissible to allow the petitioner to raise the point of non-service of notice which was abandoned before the lower appellate Court. It may also be stated here that issuance of notice under Order 21. Rule 22 of the Code was never challenged.