RANI BRAJOBALA DEBI Vs. THAKUR MADHUSUDAN SINGH

JUDGEMENT

(1.) This is an appeal against an order passed by the Subordinate Judge of Jamtara setting aside a sale held in execution of the appellant's decree. The learned Subordinate Judge has set aside the sale on the ground that the entire execution proceeding which culminated in the sale was void firstly because no notice under Order 21, Rule 22 had been issued by the executing Court although the application for execution bad been made more than one year after the date of the decree; and secondly because under Section 5 of Regulation 3 of 1872 the execution proceedings should have been commenced in the settlement Court and not in the Civil Court inasmuch as the estate concerned in this litigation was under settlement at the time the application for execution was made.

(2.) The learned advocate for the appellant contends that the view taken by the learned Sub-ordinate Judge is erroneous on both these grounds and it must be conceded that he has succeeded in showing that the second ground taken by the learned Subordinate Judge is not tenable in law. The question whether the prohibition contained in Section 5 of Regulation 3 of 1872 applies merely to a suit or to an execution proceeding was directly raised and decided in Upendra Chandra Singh V/s. Charanjit Singh A.I.R.1927. Pat. 38. It was dearly held in that case that the term, suit in Section 5 did not include a proceeding in execution and such a proceeding could be commenced in a Civil Court even when the settlement proceedings might have been going on.

(3.) The learned advocate for the respondent however relies on certain observations made by Kulwant Sahay J. in Baijulal Marwari V/s. Thakur Prasad Marwari A.I.R.1926. Pat. 33 which are to the effect that the execution proceeding is merely a continuation of the suit and therefore will be governed by Section 5 of the Regulation. That case seems to have been considered by Das and Foster JJ. in Upendra Chandra Singh V/s. Charanjit Singh A.I.R.1927. Pat. 38 wherein it was pointed out that the attention of the learned Judges who decided that case had not been drawn to the decision of the Judicial Committee in Ram Kirpal V/s. Rup Kuari1884.6 All. 269. In my opinion the view taken in the later decision is one which this Bench ought to follow.