LAKSHMI CHARAN SEN Vs. SRIS CHANDRA ROY

JUDGEMENT

(1.) This is an appeal on behalf of the auction-purchaser against an order of the Court below by which an, execution-sale held on the 9 November 1906 has been set aside. The application by which the sale was impeached was presented in the Court of first instance on the 13 January 1908, and was based on the ground that the attachment had not been properly effected and the sale proclamation had not been served. These grounds failed and the application was dismissed. Upon appeal, the Subordinate Judge has held that as notice under Section 248 of the Code of 1882 was not served, the sale is an irregular sale and is liable to be set aside. He has further found upon the evidence that the property which was of considerable value was sold for Rs. 32. Under these circumstances, he has reversed the sale.

(2.) The propriety of this order has been questioned before us on behalf of the auction- purchaser on the ground that as the sale was hot attacked on the ground of omission to serve a notice on the judgment-debtor under Section 248 of the Civil P. C., in the Court of first instance, the objection ought not to have been entertained at the appellate stage, and that, at any rate, even if the objection was entertained, it ought not to have been allowed inasmuch as the application to set aside the sale was presented more than one year after the date of the sale. In support of this view reliance has been placed upon the decision of the Judicial Committee in the case of Malkarjun V/s. Narhari 25 B. 337 : 27 I.A. 216. In our opinion there is no force in this contention. It is not necessary for us to examine the precise effect of the decision of the Judicial Committee which was fully explained by this Court in the case of Livinia Ashton V/s. Madhabmoni Dasi 11 C.L.J. 489 : 14 C.W.N. 560. 5 Ind. Cas. 390. It is clear that an application to set aside a sale on the ground that a notice under Section 248 of the Civil Procedure Code, has not been served cannot be made under Section 311 of the Code of Civil Procedure, because the validity of the sale is not attacked on the ground that there was irregularity either in the publication or conduct of the sale. Nor can it be suggested that the appropriate procedure is by way of a suit to be brought within one year from the date of the sale, because the question of the validity of the sale is a matter relating to the execution of the decree and arises between the parties to the suit. The appropriate procedure to follow is to make an application under Section 244 of the Civil Procedure Code, and such application may be made within three years from the date of sale under Art. 178 of the second Schedule of the Limitation Act. It may be pointed out, however, that a sale cannot be set aside merely on the ground of omission to serve a notice under Section 248 of the Civil Procedure Code; it must also be proved that the omission to serve such notice has resulted in substantial injury to the owner of the property. In the case before us, the Subordinate Judge has pointed out that the judgment-debtor was not a resident of the place where the property is situated. The service of the process of attachment and of the sale proclamation would, therefore be no intimation to him that execution of the decree against him had been taken out. If the notice under Section 248 had been served upon him as required by law, he would have been apprised of the execution proceedings. As was pointed out by this Court in the case of Livinia Ashton V/s. Madhabmoni Dasi 11 C.L.J. 489 : 14 C.W.N. 560. 5 Ind. Cas. 390, the object of the service of a notice under Section 248 is not merely to give the judgment-debtor an opportunity to show cause why the decree should not be executed, but also to give him an opportunity to satisfy it before execution issues. In the case before us, there is no room for controversy that the judgment-debtor has been prejudiced, inasmuch as his property worth about Rs. 1,000 has been sold for Rs. 32 without any notice to him. We must, therefore, hold that the Subordinate Judge was justified in setting aside the sale on the ground that notice under Section 248 had not been served. No doubt, this objection was not taken in the Court of first instance; but the omission to take such objection has not prejudiced the auction- purchaser because it is not disputed and cannot be doubted that the notice under Section 248 was not served, and the property has been undersold.

(3.) The result is that the order of the Court below is affirmed and this appeal dismissed with costs. We assess the hearing fee at two gold mohurs.