RAMLAL SAHU Vs. MTRAMIA

JUDGEMENT

(1.) This appeal and the application in revision are directed against the decision of the learned Additional District Judge of Bhagalpur, dated 15-5-1946, by which he has reversed the decision of the learned Subordinate Judge of Bhagalpur, dated 22-2-1946, and set aside a sale held in execution of a mortgage decree. The decree-holders are the appellants before us, and the respondents are Mt. Ramia, widow of Bhagirath Mandal, a deceased judgment-debtor and Gobind Mandal, another judgment-debtor. The principal question of law which arises for decision is the effect of an irregularity in the service of a notice under Order 21, Rule 22, Civil P.C. (as distinct from failure to issue, or want of, such a notice) that is, whether such irregularity goes to the root of the jurisdiction of the Court executing the decree and makes a sale held in execution wholly ineffective and void or is a mere irregularity which does not affect jurisdiction but renders the sale voidable by the taking of appropriate proceeding within the time allowed by law. The appeal first came before a Division Bench of this Court, and has come to this larger Bench for decision, as the Division Bench before which the case first came entertained a doubt about the correctness of the earlier Bench decision in Durga Singh V/s. Sugambar Singh A.I.R. 1941 Pat. 481 regarding the effect of non-service of a notice under Order 21, Rule 22, Civil P.C.

(2.) The facts out of which the question has arisen are the following. The appellants obtained a preliminary mortgage decree on 30-8-1939, and a final decree on 10-5-1941, against six persons,--Dwarika Mandal, his sons Bhagirath, Ganpat, Gobind and Shankar (minor), and grandson Mahendra. An application for execution of the decree was made on 7-4-1942, and a notice under Order 21, Rule 22, Civil P.C. was ordered to be issued on all the judgment-debtors. This notice appears to have been served on 11-6-1942. In the meantime, that is, on 9-5- 1942, Dwarika Mandal filed an objection under Section 47, Civil P.C. On 1-7-1942, a notice was issued under Section 13, Bihar Money-lenders Act for the valuation of the property. This notice was served on all the judgment-debtors except Bhagirath who was reported to be dead. On 11-8-1942, the decree-holders applied for the substitution of the widow Mt. Ramia, the principal respondent before us, and a minor son Naresh under the guardianship of his mother in place of the deceased judgment-debtor Bhagirath. This was allowed, and a fresh notice under Order 21, Rule 22, Civil P.C., was issued against the newly added judgment debtors. According to the decree-holders, this notice was served, and as the mother did not appear, a pleader-guardian was appointed for the minor Naresh. On 7-1-1948, the objection of Dwarika Mandal under Section 47, Civil P.C., was dismissed for default. Evidence was then given on behalf of the decree-holders in the valuation matter and the valuation of the property was fixed at Rs. 1090. The property consisted of a house and some lands in the town of Bhagalpur. A sale proclamation then issued fixing the sale for 26-3-1943. Dwarika Mandal filed another objection under Section 47, Civil P.C. on 25-3-1943, and asked for an adjournment of the sale. On 7-4-1943, a petition was filed purporting to be on behalf of all judgment- debtors waiving the right to a fresh sale proclamation and the sale was postponed to 7-5-1943. On 6-5-1943, Dwarika Mandal's second objection was dismissed, and the sale was completed on 10-5-1943, and the property sold for Rs. 1300. On 11- 6-1943, the sale was confirmed. On 9 3-1945 about one year and 9 months after the sale the respondents filed an application under Order 21, Rule 90, Civil P.C., on the usual grounds of fraud and irregularity in the service of processes in execution and consequent inadequacy of the price fetched at the sale and substantial injury to the respondents. To avoid the bar of limitation the respondents alleged that they came to know of the sale on 24-2-1945.

(3.) The learned Subordinate Judge who dealt with the application in the first instance held that the application was barred by time, and he found against the present respondents on the allegations of (a) fraud, (b) non-service of processes, (c) date of knowledge and (d) inadequacy of price or substantial injury. The learned District Judge has found on appeal that the notice under Order 21, Rule 22, Civil P.C. on Mt. Ramia was not properly served. The service report of the peon was to the following effect (I am quoting from the judgment of the learned Judge): Met Mt. Rajia, guardian of the minor, and made over the notice to her. After understanding the contents of the notice, she refused to take it on behalf of the minor and grant a receipt. It is, therefore, hung up in the east facing thatched house. The learned Judge found that Mt. Ramia was not called Mt. Rajia, and the aforesaid report of the peon did not show a proper service of the notice on Mt. Ramia. Relying on the decision in Durga Singh V/s. Sugambar Singh A.I.R. 1941 Pat. 481, he held that the sale was wholly ineffective, and as Art. 181, Limitation Act applied, the application was not barred by time. He also doubted the service of the sale proclamation, and held that the application was filed within 30 days of the date of knowledge alleged by Mt. Ramia. The learned District Judge did not say anything about respondent 2, Gobind Mandal, and decided the case mainly on his finding that the service of the notice on Mt. Ramia was not proper service and, therefore, the sale was a nullity and Art. 181, Limitation Act, applied.