ANIL KUMAR ROY CHAUDHURY Vs. AHAMMED ALI SARKAR

JUDGEMENT

(1.) THE present petitioners are decree-holders auction-purchasers in execution of a rent decree. THE sale was originally fixed on 16 June 1930, on which date the judgment-debtors opposite parties applied for an adjournment waiving service of fresh sale proclamation, and the adjournment was granted. THEreafter several more adjournments were granted on similar conditions. THE sale took place on 17 September 1930 and was confirmed on 23 March 1931. On 1 February 1937 the judgment-debtors opposite parties made an application under Section 174, Ben. Ten. Act, for setting aside the sale. THE Munsif dismissed the application finding that there was no fraud or material irregularity, and that the application was barred by limitation. On appeal the learned Subordinate Judge came to a similar finding but nevertheless he set aside the sale on a single ground, namely that it was void for want of notice under Order 21, Rule 22, Civil P.C. Against that order the present rule has been obtained.

(2.) IT is pointed out on behalf of the petitioners that want of service of notice under Order 21, Rule 22, Civil P.C. cannot be pleaded in view of the fact that the judgment-debtors put in their appearance and repeatedly asked for adjournment of the sale and obviously with the knowledge of the sale. This contention is supported by the decision in Chandra Nath Bagachi V/s. Nabadwip Chandra Dutt . A similar view has been taken by other High Courts, Bimalanandhan Prasad V/s. United Refineries (Burma) Ltd. (1933) 20 A.I.R. Rang 52, which is a decision of the Rangoon High Court. For the opposite parties it is pointed out that one of the judgment-debtors, Sabed Ali, died at the time of the execution of the decree, and one of his sons, Jabed Ali, was substituted for him in the application for execution, but another son Ahammed Ali who is opposite party No. 1 in the present rule, was left out. IT is contended that the sale must be held to be void for want of notice under Order 21, Rule 22, Civil P.C. in so far as the share of Ahammed Ali opposite party No. 1, is concerned : Manindra Chandra v. Rahatannessa . This view must be accepted. IT is further contended for the opposite parties in this Court, that the entire sale must be held liable to be set aside for want of notice under Order 21, Rule 72, Civil P.C. But the application was under Section 174, Ben. Ten. Act, and so this contention does not arise for decision. In the result I maintain the order of the lower Appellate Court declaring the sale to be a nullity in so far as the share of Ahammed Ali, opposite party No. 1, is concerned. As regards the other shares, I set aside the order of the Subordinate Judge and direct that the application for having the sale set aside be dismissed in so far as those shares are concerned. The rule is made absolute to this extent. No order as to costs.