AJODHYA CHAUDHARI Vs. RAM DAYAL TEWARI

JUDGEMENT

(1.) This is a second appeal which has been brought by the judgment-debtors against the order of the lower appellate Court confirming an order of the execution Court of first instance disallowing the objection. A preliminary objection that no second appeal lay against the objection as it was made under Order 21, Rule 90, and it is no doubt correct that if the objection does come under Rule 90 that no second appeal would lie. A first appeal would lie under Order 43, Rule 1(j), and according to the provisions of Section 104, Civil P.C. According to Rule 104(2) no second appeal would lie from an order in appeal passed under that section. The learned Counsel for the appellants argued that his objection was not an objection under Rule 90, but lay outside the provisions of that rule and came under the general provisions of Section 47 of the Code. It is regrettable that the judgment- debtor did not, while making his objections, state under what rule or section he made it. As far as I can sec from the grounds of objection which are urged here, the objection would come under Rule 90 and no second appeal would lie because the objection deals with an alleged defect in notice and publication in regard to an auction-sale proclamation, and would therefore, in my opinion, amount to an allegation of irregularity in an auction-sale. But the point is of no importance as I am prepared to treat the memorandum of second appeal as an application in revision, and I proceed to deal with the matter on its merits.

(2.) The learned Counsel did not put the facts very clearly before me, but after some time the following facts were elicited. There was an application made for attachment and sale by the decree-holder on 29 October 1928, and on 12th December 1928, a dakhalnama was filed and the Court ordered attachment and notice to the judgment-debtors, as the property was ancestral. On 23 February 1929, orders were passed for the drawing up of the sale proclamation and on 1st March 1929, a sale proclamation was drawn up in accordance with Order 21, Rule 66, after notice had been served on the judgment-debtors of whom there were three. Subsequent to this on 21 March 1929, the decree-holder made an application stating that Mathura, one of the judgment-debtors had died and asking for substitution of the name of the minor Ramsut under the guardianship of Mt. Dulari, his mother. On 22 March, 1929, it was ordered that the execution application should be amended and that notice should issue to the minor and his proposed guardian. On 15 April 1929, there was a deposition of the process- server that he had served the notice by affixation and that the minor and his guardian were present inside the house at the time when he affixed the notice in the house and that the door was open. The execution Court held that the service was sufficient and that the name of the minor should be entered. At the same time when notice was served by affixation On the minor and his guardian, a copy of the sale proclamation was similarly served by affixation.

(3.) Now the contention of the learned Counsel for the appellant is that after fall this had been done a. second sale proclamation should have been drawn up after further notices were issued under Order 21, Rule 66. The proposition therefore is that if a sale proclamation has been legally drawn up after notice to the judgment- debtors under Order 21, Rule 66, and if one of the judgment-debtors dies subsequently then a fresh proclamation must be drawn up after notice is again issued to the persons who are entered as his heirs. No authority was shown for this proposition. learned Counsel relied on Chandi Prasad V/s. Mt. Jumna , but that was a case where the judgment-debtor had died before the issue of notice under Order 21, Rule 66, and no representative was brought upon the record. It was therefore held that the sale proclamation had not been, drawn up in accordance with the provisions of Rule 66. The present case however is materially different and as no authority has been shown for the proposed extension of this decision, I cannot accept the theory of learned Counsel for the appellants. Accordingly I dismiss this second appeal or revision with costs on the higher scale to the respondents. As no authority has been shown for the view of the law advanced, I cannot grant a Letters Patent Appeal.