DURGA SINGH Vs. SUGAMBAR SINGH

JUDGEMENT

(1.) This is a defendants appeal from a decision of Wort J. in second appeal affirming the decision of the lower appellate Court. The plaintiff brought a suit out of which these proceedings arise for a declaration that the sale of certain property in execution was not binding on him and for recovery of possession of the same together with mesne profits. The trial Court dismissed the suit, but on appeal, the learned Subordinate Judge reversed the decree and decreed the plaintiff's claim. In second appeal this decision was affirmed. The plain, tiff claimed that the execution was not binding on him by reason of the fact that it was a sale wholly without jurisdiction.

(2.) According to the plaintiff, no notice under Order 21, Rule 22, Civil P.C., was served upon him, and that being so, the executing Court had no jurisdiction whatsoever to proceed with the sale. The lower appellate Court has held as a fact that the executing Court issued notice, but it was an improper one. Further, it was found that such notice was never served upon the plaintiff. The latter is a finding of fact which cannot be challenged in this Court. Counsel for the appellants tried to persuade us to reject this finding on the ground that the order sheet of the executing Court showed that notice had been served. What weight is to be attached to the evidence is a matter for the lower Court, and that Court has found that no notice under Order 21, Rule 22 was ever served and that concludes the matter.

(3.) There is no doubt whatsoever that where no notice under Order 21, Rule 22 has been issued a sale in execution is wholly without jurisdiction. That was decided by their Lordships of the Privy Council in Raghunath Das V/s. Sundar Das A.I.R. 1914 P.C. 129. Counsel for the appellants has attempted to distinguish this case from the Privy Council case. In the latter, no notice was issued, whereas in the case before us notice was issued but was not served.