KARU MAHTO Vs. EMPEROR

JUDGEMENT

(1.) This application is directed against the conviction of the seven petitioners under Section 147 and of individuals among them under Secs.325 and 323 of the Indian Penal Code by the Sub-Divisional Magistrate of Bihar, an appeal from which waa summarily dismissed by the Sessions Judge at Patna.

(2.) The facts out of which the case arose were that the master of the complainant is the landlord of a holding of the accused and had obtained a rent-decree, execution of which was taken out. The holding, it is said, was purchased by the decree-holder and delivery of possession taken on the 3 July, 1931. Five clays later, that is to say, on the 8 July, 1931, the complainant Dasia Pasban with two barahils and four ploughmen of his malik went to plough the field and while doing so were attacked by a mob of persons including the petitioners who beat Dasia and those with him. The facts of the occurrence itself have not been agitated in revision and must be taken as concluded by the findings of the court below.

(3.) The defence was that the accused were as always hitherto in possession of the field, that delivery of possession had not taken place, that even if a peon had gone to deliver possession such delivery was without jurisdiction and waa void because in the execution proceedings no notice under Order XXI, Rule 22 had been served on Karu, the judgment-debtor, in spite of the fact that the execution was taken out more than a year after the date of the decree. As regards the fact of service under Order XXI, Rule 22, the lower Appellate Court did not, deal at length with the evidence for this; it merely observed that there did not appear to have been any fraudulent suppression of process. Nevertheless it has been pointed out for the petitioners that there is evidence that Karu is illiterate and that, if so, the signature purporting to be his on the notice under Order XXI, Rule 22, cannot be hia and may be presumed to be a forgery. It is contended that the case ought to be remitted to the lower Appellate Court for a clear finding regarding the service of this notice on the ground that unless the service is established the dakhaldehani waa without jurisdiction and entirely void and did not pass possession of the field. Before asking the lower Appellate Court to reconsider the facts as to service of the notice under Order XXI, Rule 22, I will first examine the question whether to do so would or would not be in-fructuous. It would be infructuous if it would still be the duty of the court to hold that possession of the fields passed by delivery of possession notwithstanding that a notice under Order XXI, Rule 22, had not been served. This is the view taken by the Magistrate who has relied on Fateh Singh v. Emperor 20 Ind. Cas. 140 : 41 C. 43 : 14 Cr. L.J. 380 for the view that a delivery of possession by the court passes possession to the party and must be treated as doing so even though the other side may allege the delivery of possession to be of doubtful legality. In that case the Judges expressed no opinion as to the legality of the delivery of possession which was in fact aubjudice in another proceeding, Leaving that question aside they held that the delivery must be treated as having given as a matter of fact possession to the master of the petitioners before them. The reasoning in that decision seems to be applicable to the facts before us. If it were necessary to examine indepen dently for ourselves the question whether an execution taken after a year from the date of the decree against the original judgment-debtor and without notice to him is altogather void for want of jurisdiction, we migftt find that a matter of some difficulty. There are no doubt a number of decided cases in which it has been held that failure to sarve notice under Order XXI, Rule 22 on the legal representative of a party to the decree leads to an absence of jurisdiction in the court over such legal representative; for instance Raghunath Das V/s. Sundar Dai Khetri 24 Ind. Cas. 304 : 42 C. 72 : 18 C.W.N. 1058 : 1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353 : (1914) M.W.N. 747 : 16 Bom. L.R. 814 : 20 C.L.J. 555 : 13 A.L.J. 154 : 41 I.A. 251 (P.C.) decided by the Privy Council besides a number of cases decided in the High Courts. On the other hand, there is the Privy Council decision in Malkarjun V/s. Narhaei 25 B. 337 where a judicial 6 was held not to be nullity not with standing that the notice under Order XXI, Rule 22 had been wrongly served on a person who was not the legal representative of the judgment-debtor's estate. But in theee ana other cases that have been referred to, the question has been as to the existence of jurisdiotion in a court against a person who had hot been a party to the suit and had not previous to the issue of notice been made a party to the proceedings in execution. It is not difficult to see the principle on which the jurisdiction of the court might be denied in such a case. It may well be questioned whether once a party is before the court and has suffered a decree he can subsequently cease to be under the jurisdiction of the court for the purpose of execution proceedings by the mere lapse of a period exceeding one year; and although the point never seems to have been specifically made the subject of a distinction between Sub- clause (a) and (b) of Order XXI, Rule 22 (1) there are recorded decisions in which the courts seem to have been somewhat less willing to disturb execution proceedings when the judgment-debtors who objected to them had been parties to the original suit or to execution proceedings at an earlier stage. I may instance Fakhrul Ismail V/s. Rani Bhuhaneshwari Kuar 117 Ind. Cas. 648 : 7 Pat, 790 : A.I.R. 1929 Pat. Here it was held that there was no want of jurisdiction is consequence of non-service of a notice under Order XXI, Rule 22 where the notice had in fact been issued and where it was found that the judgment-debtor had knowledge of the fact of issue of the notice as proved by his appearing and contesting the execution. This was the case of a judgment debtor who had himself been a party to the original proceedings and that is also the case here. It seems to me then that on the facts before us to remit the case to the lower Appellate Court for further findings of fact or further examination of the evidence would be infructuous because it must be held in any easo that the delivery of possession pasaed possession to the master of the complaniant and that the convictions on the charge of rioting must be supported.