BIBI SAYEEDA KHATOON Vs. BISHUNDEO SINGH

JUDGEMENT

(1.) This is a decree-holder's second appeal against the decision of the learned Subordinate Judge of Gaya reversing that of the Munsif of Aurangabad in execution proceedings. The facts leading up to this appeal are as follows: The appellant obtained a decree for rent on 5 September 1939 against the respondent. The decree was put into execution on 21 August 1940 resulting in the sale of the judgment-debtor's property. The judgment-debtor took proceedings to have the sale declared invalid and inoperative and ultimately it was decided by the appellate Court that the sale was a nullity inasmuch as notice under Section 148 (g), Bihar Tenancy Act, had not been either issued or served on the judgment-debtor. The order of the appellate Court declaring the sale to be a nullity was passed on 25 November 1942. Ultimately the execution case itself was dismissed on 2 January, 1943, apparently on account of the default of the decree-holder. Then the decree-holder took out the notice prescribed by Section 148 (g), Bihar Tenancy Act, which was served on 18 April 1943. A second execution case was then started on 3 July 1943 praying for the same relief as had been claimed and obtained in the previous execution case. The judgment- debtor in the present execution case took the objection that the execution was barred by limitation on the ground that the first execution case was not in accordance with law because, it was said, that execution case was wholly void and ineffectual as was ultimately held by the appellate Court by its judgment referred to above. The learned Munsif before whom the execution proceeding was pending took the view that though the sale was a nullity for non-service of the notice under Section 148 (g), Bihar Tenancy Act, the execution case itself could not be said to be a nullity and that it was an application which was in accordance with law and therefore operated to save limitation. On appeal by the judgment-debtor the learned Subordinate Judge reversed that decision taking the view that the previous application was not in accordance with law inasmuch as the Court was not competent to do anything in connexion with that application for execution of the decree. Sence this second appeal by the decree-holder.

(2.) It has been contended by Mr. H. R. Kazimi appearing on behalf of the appellant that the learned Subordinate Judge has taken a wrong view of the effect of the previous execution case, started by the decree-holder, which resulted in the sale of the respondent's property though that was declared to be inoperative by the appellate judgment aforesaid. He has relied upon a decision of Manohar Lall J. in Dwarika V/s. Siri Kishun A. I. R. 1944 Pat. 343. It has been laid down that the provisions of Section 148 (g), Bihar Tenancy Act, are directory and not mandatory and do not go to the root of the jurisdiction of the Court executing the decree. Hence in that case it was laid down that the non-service of the notice required under that section did not deprive the executing Court of the jurisdiction to sell the property of the judgment-debtor or entitle the judgment-debtor to ignore the sale as a nuljity or even to have it set aside on that ground. We are not sure whether that decision has taken ac count of the provisions of Section 158AA which is to the following effect: (1) If, within the time mentioned in Clause (g) of Section 148, the judgment-debtor fails to pay to the decree-holder or deposit into Court the decretal amount, such amount may, upon an application made in this behalf by the decree-holder, be realised by the attachment and sale of the property of the judgment-debtor both moveable and immovable: Provided that the moveable property of the judgment-debtor shall not without his consent in writing be so attached or sold unless the decree cannot be , satisfied by the attachment and sale of the holding for the arrears of the rent of which the decree was passed. (2) The application referred to in Sub-section (1) shall be in the prescribed form, shall contain the prescribed particulars and shall state the mode in which the assistance of the Court is required.

(3.) Now, that section in effect provides that on the failure of the judgment-debtor to satisfy the decree passed against him within the period of grace allowed by Section 148 (g), Bihar Tenancy Act, it is open to the decree-holder to make an application for realizing by attachment and sale of the property of the judgment- debtor the decree passed in his favour. By Sub-section (2) that application has to be in the prescribed form. It may therefore be contended with a good deal of force that the jurisdiction to attach and sell the property of the judgment-debtor arises upon the default of the judgment-debtor as aforesaid and on an application being made by the decree-holder for the execution of the decree by attachment and sale of the judgment-debtor's property. In this connexion the decision of Reuben J. in the unreported case in Ram Charan Singh V/s. Sreemati Janki Devi A. F. A. o. No. 152 of 1943 decided on 16 March 1944, may be referred to. His Lordship has taken the view that Section 158AA (wrongly said to be Section 148AA) lays stress on the realization of the decree by attachment and sale of the judgment-debtor's property and not on the filing of an execution petition; that is to say, Section 158AA does not prohibit the filing of an execution petition, but only provides that the judgment-debtor should be given a further chance of complying with the terms of the decree against him before his property, moveable or immovable, could be put up to sale in realization of the decree against him. In my opinion that is the right view of the provisions of Section 158AA, Bihar Tenancy Act. Manohar Lall J. in his judgment aforesaid has made the following observations with reference to the provisions of Section 148 (g), Bihar Tenancy Act: No provision is made in this section or in any other part of the Act that it is the service of this notice which confers jurisdiction on the exeouting Court to exeeute the decree, or in other words that the non-service of the notice debars the exeouting Court of its undoubted jurisdiction to sell the property of the judgment-debtor Or entitles the judgment-debtor to ignore the sale as a nullity and to have it set aside on the failure of serving him with such notice.