KESHAB CHANDRA KAR Vs. RAJENDRA NATH GHOSH

JUDGEMENT

(1.) This is an appeal against an order of the lower appellate Court passed on an application, made under the provisions of Secs.311 and 244, Civil Procedure Code, in connection with the execution of a mortgage-decree obtained against the present appellants. The present appellants who made the application contended that the sale of the mortgaged property should be set aside on the ground that no notice as required by the provisions of Section 248, Civil Procedure Code, had been served on them prior to the taking of the proceedings in execution. The Court of first instance allowed the objection but, on appeal, the lower appellate Court has set aside the order of the Court of first instance and has dismissed the application. Hence this appeal.

(2.) The point which has been argued before us is a pure one of law, namely, whether, after the issue by the High Court of the Rules under Section 104 of the Transfer of Property Act, the provisions of Section 248, Civil Procedure Code, can be held to apply to proceedings in execution of mortgage-decrees, that section not having been extended to such proceedings under the Rules issued by the High Court. The lower appellate Court in arriving at its conclusion relied on the rulings of this Court in the cases of Kedar Nath Raut V/s. Kali Charn Ram 25 C. 703 : 2 C.W.N. 353 and Harish Chandra. Mondol V/s. Jagabandhu Dutta 12 C.W.N. 283 : 3 M.L.T. 202 : 7 C.L.J. 580, and held that the omission to issue the notice under Section 248, Civil Procedure Code, did not vitiate the proceedings in execution of the respondent's mortgage-decree. The learned Counsel in support of the appeal has contended that the view taken by the lower appellate Court is wrong. He has argued that the provisions of Chapter IV of the Transfer of Property Act are not in conflict with the provisions of the Code of Civil Procedure, so far as they relate to mortgage-decrees, but are supplementary, and he has further contended that the Rules, issued by this Court under Section 104 of the Transfer of Property Act, are Rules for the guidance of the lower Courts in execution of mortgage, decrees and do not derogate from the provisions of the Civil P. C.. He has pointed out that the Transfer of Property Act came into force on the 1 July 1832, while the Code of Civil Procedure came into operation on the 1 June 1882 and he has argued that, as Section 2 of the Transfer of Property Act provides that the Act shall not affect the provisions of any enactment not expressly repealed by it, it follows that the Act did not in any way restrict the operation of the provisions of the Civil P. C. as applicable to the execution of mortgage-decrees. He has drawn our attention to the fact, that from 1882 to 1892, when the Rules were issued by. the High Court under Section 104 of the Transfer of Property Act, the proceedings in execution of decrees in mortgage suits were governed by the provisions of the Civil P. C. and he has pointed out that several sections of the Code, which have not been made applicable to proceedings in execution of mortgage-decrees by the rules of the High Court, either bear internal evidence that they must be taken to apply to them, or are the only provisions, of the law by which such proceedings, in execution could be regulated. He has brought to our notice the decision of the High Court of Madras in the case of Mallikarjunadu Setti V/s. Lingamurti Pantulu 25 M. 244 (F.B.) and has further contended that no Rules of this High Court could defeat the statutory rights already-existing under the Civil P. C. at the time when they were passed. We are of opinion that, if the question raised, was one which had not been previously considered by this Court, the arguments of the learned Counsel would have deserved our most careful and serious consideration; but the question is one which has been before this Court more than once and is now, in our opinion, concluded by authority, See the Full Bench case of Kedarnath V/s. Kali Churn 25 C. 703 : 2 C.W.N. 353 and also the case of Hatem Ali Khundkar V/s. Abdul Gaffur Khan 8 C.W.N. 102; Shyamkishan v. Sundar Koer 31 C. 373 and Akikunnissa Btbee V/s. Roop Lal Das 25 C. 133. We must, therefore, hold that, so far as this High Court is concerned, there is clear authority which is binding oh us that the whole of Chapter XIX of the old Civil P. C. does not apply to proceedings in execution of mortgage decrees, and that, haying regard to the Rules issued by the Court under Sec. 104 of the Transfer pt Property Act, the issue of, the notice under Section 248, Civil Procedure Code, was not necessary in the present case.

(3.) We may mention that any doubt as to the law on the subject has been removed since the passing of the new Code, of Civil Procedure and that the question raised in the present case is not likely to arise again.