KASHI RAM Vs. MTHASMAT BANOO

JUDGEMENT

(1.) This is an appeal in the execution department from a decree of the District Judge of Bareilly passed in appeal. Mt. Hashmat Banoo is the judgment-debtor, and the decree passed against her was for the recovery of money out of the assets of her deceased husband Anwar Husain. For the. purposes of this appeal we need only mention the application for execution of 26 June 1927. In pursuance of this application certain properties were put to auction and were purchased by the decree-holder himself on 20 October 1927. The decree was thereby satisfied on 15 March 1928. Mt. Hashmat Banoo applied to the executing Court for the setting aside of the sale on the ground that she had no notice thereof. Presumbly what was meant was that she was not notified either under Order 21, Rule 22 of the application for execution nor under Order 21, Rule 66 of the date of the preparation of the sale proclamation. Possibly the two subordinate Courts have taken an indulgent view of the facts of case in holding that service on her was not sufficient. She is a pardanashin lady and in the nature of things service cannot be made on her personally. She was reported to be inside a house, and the summons was affixed on the gate. However it may be, the finding of fact is final that there was no proper service of notice.

(2.) The trial Court was not very definite, so we looked into the matter, and in both cases the service was made in the same manner as would be possible for service on a pardanashin lady. The first Court set aside the sale, but made a provision that the decree-holder may apply for execution again by sale of the property provided he proved that the transfers in favour of the lady were collusive and did not in reality pass the property to the lady. On appeal the learned District Judge kept the sale in suspense and did not set it aside. He directed the decree- holder to apply for an inquiry as to whom the property belonged. He explained that if the finding was that the property belonged to the lady the sale would automatically be rendered void, and if it was proved that the property did not belong to the lady the sale need not be interfered with. Such an order would lead to considerable confusion. The sale remaining in suspense the decree-holder may take no action whatever and enjoy the benefit of sale. Such an order cannot be upheld. The question before us is whether the sale should be set aside or not.

(3.) The respondent was not represented here. But Mr. Pathak, on behalf of the appellants has put fairly before us the case law on the subject. The matter for inquiry is whether the application of Mt. Hashmat Banoo was or was not barred by the period of limitation prescribed by Art. 166, Lim. Act. The subordinate Courts have not noticed the addition to Col. 1 of that article made by Act No. 1 of 1927 which came into operation on 1 January 1928 prior to the application of Mt. Hashmat Banoo to have the sale set aside. Col. 1 of the article now reads as below: Under the same Code (Civil Procedure Code) to set aside a sale in execution of a decree including any such application by a judgment- debtor. the period prescribed is 30 days from the date of the sale.