MEHTABBAI Vs. MST MOTANBAI

JUDGEMENT

(1.) THIS is an appeal by one of the judgment-debtors Mst. Mehtab Bai against an order refusing to set aside a sale under the provisions of O. 21 R. 90, C.P.C.

(2.) THE material facts leading up to this appeal may shortly be stated as follows. Respondent No. 1 Mist. Motan Bai obtained a mortgage decree against the appellant Mst. Mehtab Bai and respondent No. 3 Poonamchand in a suit for sale. THE said Poonamchand was admittedly a co-mortgagor. THE final decree was passed on the 22nd December, 1954. This Poonamchand was a natural-born son of the deceased Gulabchand, husband of Mst. Mehtab Bai, and has obviously been living at all material times in the house under mortgage. He has, however, been described in these proceedings as son of Jagannath, and it is admitted between the parties that the latter was the uncle of Gulab Chand. During the course of arguments in this Court, we have been told that Poonam Chand had been given in adoption to Jagannath; but this aspect of the matter was never brought in issue during these proceedings, and the decision of this appeal, in our opinion, does not turn on this circumstance. We have merely mentioned this in order to avoid all confusion later on.

(3.) LEARNED counsel for the appellant drew our attention to Tripura Modern Bank vs. Bansen & Co. (4). In this connection ; but in so far as this case is relevant for our present purpose, it will be seen that the law laid down there is founded on O. 5, R. 17 as amended by the Calcutta High Court and in this very authority reference has been made at p. 788 to Khiroda Sunduri vs. Nabin Chandra (1) wherein the view was taken that where the defendants were Pardanashin Hindu ladies to whom the peons could not possibly get access, the provision of O. 5, R. 17 were satisfied inasmuch as it would be said with respect to them that the serving officer could not find them 'after using all due and reasonable diligence'. This was the law laid down with reference to Rr. 17 of O. 5, as it stood before the amendment, and as it stands so far as we are concerned.