CHANDRA NATH BAGCHI Vs. NABADWIP CHANDRA DUTT

JUDGEMENT

(1.) This was a mortgage suit instituted in 1923 and the subject matter of the mortgage appears to be a rice mill and certain properties connected therewith. It is unnecessary to go into details as to the parties defendants in the suit. It is enough to say that there were three defendants and that, on 2 December, 1924, there was a compromise decree according to which one of the parties was to continue in possession as receiver and certain payments were to be made-one payment was to be made immediately and the other payments were to be made in stated instalments. There was a provision in the decree as to the meaning of which some question now arises to the effect that in default of payment of two consecutive instalments by the receiver and in breach of the terms mentioned in Clause (D), that was the covenant to insure the plaintiff will be able to execute the decree without making it absolute as against any or all of these defendants.

(2.) Now an application for execution of the decree was filed on 14 January 1927 and, instead of noticing that more than a year had elapsed since the date of the decree and instead of issuing notice under Order 21, Rule 22, Civil P.C., the following order was simply passed: "Issue notice under Order 21, Rule 66, Civil P.C." It appears that this notice about the settlement of the sale proclamation was served upon all the three judgment-debtors and on 21 May 1927, the judgment-debtors objected to the valuation. A good many hearings over this question of the valuation to be inserted in the proclamation of sale took place before the learned Judge and finally the learned Judge on 24 May decided that, as there was considerable divergence in the valuation put by either party, the sale proclamation should not issue without the valuation being fixed. His order goes on: As suggested by the decree-holder and agreed to by the judgment-debtor, Babu Benoy Krishna Roy, Secretary, Rice Mill Association, Tollv-gunge, is appointed to fix the valuation.

(3.) Thereafter this gentleman made his report and there was a great deal of discussion about that and, on 18 June-; 1927, the learned Judge put the valuation, at Rs. 52,000 and directed the proclamation of sale to issue. From that order, there was an appeal taken to this High Court upon the question of valuation and that appeal was dismissed. The case going back to the learned Judge, the judgment-debtors objected among other things in August 1921, that the sale-could not proceed because originally in; January 1927 no notice under Rule 22, Order 21, Civil P. C, had been issued and: they relied upon the decision of the Privy Council in the case of Raghunath Das V/s. Sundar Das Khetri A.I.R. 1914 P.C. 129, and upon other decisions in the same sense. The learned Judge gave effect to that objection. He said: It is further pointed out that the judgment-debtor did appear on notice under Order 21, Rule 66 and objected to the valuation which was thereafter fixed. But this does not do away with the objection that there has been no notice under Rule 22.