SUKHDEO GOND Vs. BRAHMDEO TEWARI

JUDGEMENT

(1.) THE question at issue in this appeal is whether the sale of certain properties held on the 15th September 1939, in an execution case was a nullity and without jurisdiction because no notice was issued or served against the judgment-debtor under the provisions of Order 21, Rule 22, Code of Civil Procedure.

(2.) THE case of the plaintiff appellant is that no notice under O, 21, Rule 22, Code of Civil Procedure, was issued at the instance of the decree-holder. It appears that Ramjanam Mallah, the respondent, had obtained a decree against Sukhdeo Gond and his two son's. Ramjanam Mallah put the decree in execution and it appears from the order sheet that he made a prayer that notice under Order 21, Rule 22, and attachment should issue simultaneously. THE executing Court, however, ordered that notice "under Order 21, Rule 22, need not be issued and only attachment should be issued. Later on the appellant Sukhdeo Gond appeared in the execution case and filed objection under Section 60, Code of Civil Procedure, and Ss. 13, 14 and 15 of the Money-tenders Act. THE parties adduced evidence in the matter and the executing Court released two plots under attachment and sale as prayed for by the appellant Sukhdeo Gond, but the other lands were sold on the 15th of September 1939. THE argument addressed by learned counsel on behalf of the appellant is that the auction sale which took place on the 15th of September 1939, was a nullity, because there was no notice served upon the judgment-debtor under Order 21, Rule 22, Code of Civil Procedure. We do net think that the argument put forward by learned counsel for the appellant is well founded. Our view is supported by a decision of this High Court in Balmakund v. Firm Pirthiraj Ganesh Das, AIR 1951 Pat 333 (A), where also there was a sale in an execution case and the point was taken on behalf of the judgment-debtor that the sale was a nullity because no notice under Order 21, Rule 22, Code of Civil Procedure, had been issued. It appears that there was a proceeding under Order 21, Rule 90, made on behalf of the judgment-debtor in that case and there was no objection taken in that case about the non-issue of notice under Order 21, Rule 22. It was held by the learned Judges constituting the Division Bench that there was no lack of jurisdiction in the executing Court in the circumstances appearing in that case. THE reason was that the judgment-debtor had knowledge of the execution proceeding and put forward all possible objections for defeating the execution case. In the course of the judgment, Narayan, J., referred to the following observations of Kulwant Sahay, J., in Fakhrul Islam v. Bhubaneshwari Kuar, ILR 7 Pat 790: (AIR 1929 Pat 79) (B):--