BECHU MISSER Vs. SIR KAMESHWAR SINGH BAHADUR

JUDGEMENT

(1.) This appeal has been strenuously argued by Mr. B.N. Mitter on behalf of the appellants but unfortunately we are unable to give him any relief. The facts are quite simple. In execution of a rent decree obtained against a number of judgment-debtors 44 bighas, 7 kathas and 8 dhurs of land including 1 bigha, 4 kathas and 2 dhurs, which was belagan, was put up to sale and the same was purchased on 16-8-1941 by the decree-holder for a sum of Rs. 1161 odd. The execution was started on 16-12-1940, the rent decree having been obtained on 8- 2-1938. The sale was confirmed on 17-9-1941, and delivery of possession was also effected on 10-4-1942. Four out of 21 judgment-debtors, namely Bechu Misser, Rajbansi Misser, Brijbansi Misser and Sarjug Miaser, a minor represented by his natural guardian, made an application under Order 21, Rule 90, Civil P.C., and Section 47, Civil P.C. on 22-12 1942, alleging that they came to know of the sale on 15-12-1942. In that application it was further alleged that all the processes of execution were served fraudulently and owing to material irregularities and fraud in publishing and conducting the sale, valuable property worth about Rs. 15000 had been sold for an inadequate sum of Rs. 1161.. The trial Court dismissed the application: holding that notices under Order 21, Rule 22, Civil P.C. were served upon all the judgment-debtors although the service on the minor applicant was irregular. He also held that the application was made beyond the period of limitation as the judgment-debtors had knowledge of the entire execution proceedings. In appeal, the learned Additional Subordinate Judge in a careful judgment has come to the conclusion that notwithstanding the fact that the property has been sold for inadequate price and that the Court did not observe the provisions of Section 163(5), Bihar Tenancy Act, he could give no relief to the judgment-debtors, as these irregularities and the inadequacy of the price could only be considered if the applicants came within the period of limitation and the application was made under Order 21, Rule 90, Civil P.C. But the learned Additional Subordinate Judge also held that the service of the notice on the minor under Order 21, Rule 22, Civil P.C., was not a service in the eye of law, as in his view the minor was not effectively represented in the execution proceedings and, therefore, his interest in the land sold was not at all affected by the sale of 16-8- 1941. Hence the second appeal to this Court.

(2.) Mr. B.N. Mitter argued in the first place that as it has been held that there was no service on the minor in the eye of law, the. Court had no jurisdiction to sell the entire land, and he relied for this on the celebrated case of their Lordships of the Judicial Committee reported in Jagdishwar Dayal Singh V/s. Dwarka Singh . The principle laid down by their Lordships was also applied by this Court in Jyoti Prasad Singh V/s. Tara Sankar A.I.R. 1933 Pat. 537. But in these two cases it is important to remember that it was found as a fact that the decree in execution of which the holding was sold was not a rent decree within the meaning of that expression in the tenancy law. In both the cases, some of the tenants had) been left out, and, therefore, the decree, although it was a decree for arrears of rent, was not a rent decree for which the holding was liable to be sold by the revenue Court. In the present case the position is different because the decree-has never been challenged to be otherwise than a good decree against all the judgment-debtors including the minor applicant. At p. 182 in their Lordships observed that the decree was thus only apt to attach the interest of the defendants in the tenure and was no sufficient warrant for a sale of the whole tenure under Section 208, Chota- Nagpur Tenancy Act. In the present case, the decree was a sufficient warrant for the sale of the entire holding, because, as I have said, the decree was against all the judgment-debtors who were interested in the holding. The executing Court, therefore, had full jurisdiction to execute the decree and to put up the property for sale, which it had advertised on a proper sale proclamation, in the presence of three of the applicants, although it has been found that the fourth applicant, a minor, was improperly served in the sense that no formal steps bad been taken to appoint a regular guardian for him. I am unable to hold that the mere fact that the provisions of Order 21, Rule 22, Civil P.C. were not complied with in the case of Sarjug Misser will make the entire execution proceedings null and void. It is further to be observed that the application of the other three judgment-debtors could not be treated as an application under Section 47 but was an application to set aside the sale under Order 21, Rule 90 on the ground that they had no knowledge of the execution proceeding before 15-12-1942. But that has been found as a fact against them, and the Courts below have held that they had knowledge of the entire execution proceedings from start to finish. I accordingly overrule the first contention.

(3.) It was then argued that the executing Court did not before issuing the sale proclamation, estimate the value of the holding or a portion of the holding in order to decide whether the whole of the holding or only a portion should be sold so that the proceeds may satisfy the decree. But it has been pointed out by this Court in a number of cases recently that the mere fact that the Court has omitted to make a valuation in order to decide whether the whole or any part of it should be sold is a mere irregularity and does not go to the root of the jurisdiction of the Court to sell the property see Sheo Dayal Narain V/s. Moti Kuer A.I.R. 1942 Pat. 238. Moreover Sub-clause (6) itself gives a remedy to the person aggrieved to appeal to the Court, to which an appeal from the Court executing the decree would lie, for a decision before the sale that the property ought to have been valued in whole or in part. Attention was drawn to the case Bigan Singh V/s. Zaffer Hussain A.I.R. 1940 Pat. 567 in support of the contention advanced by Mr. Mitter, but in that case it will be observed that the objection was raised before the sale. In the present case no objection was raised by the judgment-debtors on whom notices of the execution have been found to have been served, and, therefore it is impossible to treat the omission of the Court in valuing the property as required by Section 163 (5) as anything more than an irregularity which might have enabled the Court to set aside the sale if the application had been made within 30 days of the sale and before its confirmation. I would, therefore, overrule the second contention also. The result is that the points urged fail", and the appeal must be dismissed. In the circumstances there well be no order for costs of this Court. Reuben, J.