RAJENDRA PRASAD Vs. DEBI PARSAD

JUDGEMENT

(1.) This matter arises out of an application to set aside a sale held in execution of the decree passed in a suit for rent against Bhagbat Prasad, the father of the petitioner. Bhagbat Prasad died pending the disposal of the suit on 13 November 1935. Steps were taken to substitute in his place his sons who were described as minors and to appoint a guardian-ad-litem for the minors. The suit was eventually decreed and in due course execution was applied for on 23 December 1936. Sale in execution of the decree was held on 4 April 1937, the purchaser of the property put up for sale being the uncle of the petitioner. On 15 September 1937, the petitioner applied to set aside the sale alleging that he had no notice of it until 8 September.

(2.) The Court below has disbelieved the petitioner's allegation that he did not hear of the sale until 8 September. The Munsif set aside the sale and ordered the petitioner to deposit the decretal amount. This order was complied with on 31 January 1938. In appeal by the auction, purchaser against the order the Appellate Court held that there was no sufficient ground for setting aside the sale and confirmed it. The ground on which the petitioner challenged the sale was the absence of notice to him under Order 21, Rule 22, Civil P.C. The question that arises now is whether the application is barred by limitation. If the sale was void the period of limitation applicable is that prescribed by Art. 181, Limitation Act of 1908: see Ramanand Ganpat V/s. Rakhal Mandal AIR (1936) Pat 496. If, on the other hand, the sale was not void but voidable the period of limitation applicable is that prescribed by Art. 166, namely 30 days from the date of sale. As the petitioner's application was more than five months from the date of sale it is necessary for him to show that the sale was a nullity in order that his application should succeed.

(3.) The petitioner attempts to do this by showing that the notice that was issued in this case under Order 21, Rule 22, was not issued to him but to the guardian- ad-litem who had been appointed in the suit on the death of his father. Reliance is placed on the decision of their Lordships in the Privy Council in Raghunath Das v. Sunder Das Khetri AIR (1914) PC 129 in which it was held that notice under Section 248, Civil P.C. of 1882 was the basis of the executing Court's jurisdiction to proceed in execution. That decision has been dealt with by this Court in F.E. Chrestien V/s. Jaideo Prasad Rai AIR (1934) Pat 274 in which Dhavle J. pointed out that what the Privy Council in effect decided in Raghunath Das V/s. Sunder Das Khetri AIR (1914) PC 129 was that a former decision of the Calcutta High Court with reference to the provisions of Section 248 of the Code of 1882 was a correct decision; but Dhavle J. went on to point out that the law has been altered by the present Code of 1908, which, in Sub-rule 2 of Rule 22 has introduced a statutory exception to the general rule mentioned in the Privy Council decision.