SHAIKH YAKUB HARUNKHAN Vs. MAHADEV NARAYAN PRABHU DESAI

JUDGEMENT

(1.) This appeal must fail. Mr. Desai takes a preliminary point, but I do not express any opinion on it. On the merits the appellants have no case. It appears that a decree for partition was made in this case and in execution of it one of the parties filed a darkhast. The decree was then more than one year old, but the learned Judge acting under sub-rule (2) of Rule 22 of Order XXI, Civil Procedure Code, dispensed with the issue of the notice required by sub-rule (1), He ordered execution to issue and sent the darkhast to the Collector for effecting partition. The Collector then issued notices to the parties, There is no dispute these notices were tendered to the appellants but were not accepted by them. This happened in March 1926. The Collector proceeded with partition and completed it in March 1928. In January 1929 the present appellants made an application to the learned Judge to set aside all the proceedings on the ground that the provisions of Order XXI, Rule 22, were not complied with inasmuch as the Judge did not record any reasons for dispensing with notices to the judgment-debtors. It appears that the case in the lower Courts proceeded upon the footing that no reasons were recorded by the learned Judge as required by sub-rule (2) for ordering execution to issue without issuing the notice prescribed by sub-rule (1). I have looked into the order which shows clearly that the learned Judge considered the application to dispense with notices on its merits, applied his mind to the facts before him, and stated, to use his own words, that there was no reason to issue notices to the opponents. In my opinion, that is a sufficient compliance with sub-rule (2) of Rule 22 of Order XXI.

(2.) The learned advocate for the appellants refers to Manmatha Nath Ghose Lachmi Debi (1927) I.L.R. 55 Cal 96 and , F.B.

(3.) Now in Manmatha Nath Ghose V/s. Lachmi Debi the contention was that no notice was in fact issued and not that the Court purporting to act under sub-rule (2) had made an order on the facts before it dispensing with the issue of a notice. The case, therefore, is no authority for the proposition that when a Court acting under sub-rule (2) has in fact dispensed with the issue of a notice, the mere fact that it has not recorded its reasons would vitiate the execution ordered to issue. The learned Judges followed the decision of a Full Bench of the Madras High Court in Rajagopala Ayyar V/s. Ramanujaehariar which is also relied upon by the appellants. In this case it was held that in a case where notice under Order XXI, Rule 22, Civil Procedure Code, has not been issued and the omission is due not to the fact that sub-rule (2) of Rule 22 has been applied, but to the fact that notice was not asked for, a sale held in execution is a nullity and not merely voidable but is void as against the person to whom notice should have been, but was not, issued. Schwabe C.J. commenced his judgment by observing that if the matters were free from authority he was inclined to the view that non-compliance with the provisions of Order XXI, Rule 22, was a material irregularity and not an illegality which would make a subsequent sale a nullity. In this case also no notice as required by sub-rule (1) was in fact issued and not, as here, in fact dispensed with, Commenting on an earlier decision of a Divisional Bench in Viswanatkan Ghetty V/s. Somasundaram Chetty (1921) I.L.R. 45 Mad. 875 Schwabe C.J. observed as follows (p. 294):- We think that the decision in Shyam Mandal V/s. Satinath Banarjee (1916) I.L.R. 44 Cal. 954 is correct and that the ruling in Viswanathan Ghetty V/s. Somasundaram Chetty (1921) I.L.R. 45 Mad. 875 has been too widely expressed. It may well be that, where an application has been made under sub rule (2) and the conditions contemplated by that sub-rule exist, the non-issue of notice without the recording of reasons would be a mere irregularity. But we are of opinion that when, as hero, it is not even suggest-ed that the conditions required by sub-rule (2) existed or were under the consideration of the Court), the Privy Council ruling in liaghunath Das V/s. Sunday Das Khetri (1914) I.L.R. 42 Cal, 72, P.C. should be followed.