RASARAJ KUNAI Vs. PROSONNA KUMAR ROY

JUDGEMENT

(1.) THE only question raised in this appeal is whether the omission to serve a notice under the provisions of Order XXI, Rule 22, of the new Code of Civil Procedure, corresponding to Section 248 of the old Code, is by itself sufficient to render a sale,, which has subsequently been held, void. In the present case, an application was made by the present appellants to have a sale set aside on that ground and the Court of first instance, treating the application as one under Order XXI, Rule 90 of the new Code, came to the conclusion that the judgment-debtors had failed to prove any irregularity which by reason of the fact that it had caused substantial injury to them would be a sufficient ground for setting aside the sale. On appeal before the District Judge, the main question which seems to have been contested was whether the application was preferred under Order XXI, Rule 90, corresponding to Section 311 of the old Code, or under Section 47 of the new Code, corresponding with; Section 244 of the old Code. THE learned Judge appears to have been of opinion that the application was one under Rule 90 of Order XXI of the new Code, but at the same time, he held that, even if it could be regarded as an application under Section 47, as the Judgment-debtors had failed to prove any substantial loss resulting from any irregularity, the application to set aside the sale could not succeed. THE judgment-debtors have appealed to this Court and a preliminary objection is taken to the competency of the appeal on the ground that, as the application was one under Order XXI, Rule 90, no second appeal would lie. THE learned Pleader for the appellants has, however, contended that the application could not be one falling under Order XXI, Rule 90, because the service of the notice under Section 248 of the old Code was not a matter arising in the execution of the decree itself and he has further contended that the omission to serve the notice under Section 248 of the old Code is itself sufficient to render the sale void. He has referred us to the decision of this Court in the case of Livinia Ashton v. Madhabmoni Dasi 5 Ind. Cas. 390 : 11 C.L.J. 189 : 14 C.W.N. 560. On the other hand, the learned Pleader for the respondent has relied on the decision of this Court in the case of Lakshmi Charan Sen v. Sris Chandra Roy 9 Ind. Cas. 584 : 13 C.L.J. 162. We have considered those two decisions carefully and, in our opinion, they do not support the view that the omission to serve the notice required by Order XXI Rule 22, is sufficient to render a subsequent sale void. In the case of Livinia Ashton v. Madhabmoni Dasi 5 Ind. Cas. 390 : 11 C.L.J. 189 : 14 C.W.N. 560, on which the appellants Vakil relies, reference is made to the decision of the Privy Council in the case of Malkarjun v. Narhari 27 I.A. 216 : 25 B. 337 : 2 Bom. L.R. 927 : 5 C.W.N. 10 : 10 M.L.J. 368. THEir Lordships of the Privy Council, in dealing with the question whether a sale held without the issue of a notice under Section 243 of the Code is a nullify, expressed the opinion that the omission would constitute a serious irregularity entitling the judgment-debtor to vacate the sale; but, at the same time, they laid down that, after the sale had become complete, the sale was a reality which could be defeasible only in the way provided by law; and they seemed to favour the opinion, which was afterwards expressed by this Court in the case of Lakshmi Charan Sen v. Sris Chandra Roy 9 Ind. Cas. 584 : 13 C.L.J. 162 which is relied on by the learned Pleader for the respondents, that, though an application to set aside a sale on the ground that no notice has been served as required by Order XXI, Rule 22, is one which cannot be made under the provisions of Order XXI, Rule 90 of the new Code, corresponding with Section 311 of the old Code but must be one made under the provisions of Section 47 of the new Code corresponding with Section 244 of the old Code, still in order to justify a Court in setting aside a sale on the ground of the omission to serve a notice under Order XXI, Rule 22, it must be proved that the omission to serve such notice has resulted in substantial injury to the owner of the property sold. THE learned Pleader for the appellants has also referred to the case of Gobinda Pershad alias Gobind Lal v. Rung Lal 21 C. 23 to support the contention that the omission to serve the notice renders the sale void. We are not, however, prepared to follow the decision in that case and consider that we are bound by the decision of the Privy Council which has been followed in the two cases, which have been already mentioned and which are reported in Livinia Ashton v. Madhabmoni Dasi 5 Ind. Cas. 390 : 11 C.L.J. 189 : 14 C.W.N. 560 and Lakshmi Charan Sen v. Sris Chandra Roy 9 Ind. Cas. 584 : 13 C.L.J. 162. In the present case, both the lower Courts have found that the judgment- debtors failed to prove that they had suffered any substantial loss by the sale and, in those circumstances, we consider that both the lower Courts were justified in the conclusions at which they arrived that the sale could not be set aside.

(2.) THE result, therefore, is that the appeal is dismissed with costs. We allow two gold mohurs as the hearing fee to be divided in equal shares between the two sets of respondents who have appeared.