Back
PATNA HIGH COURT
Imam and Narayan JJ.
Balmakund
Versus
Firm Pirthiraj Ganesh Das
Appeal from Original Decree No. 266 of 1946 ;
Decided On : FEBRUARY 21, 1950
CIVIL PROCEDURE CODE - ORDER 21, RULE 22 - SALE WITHOUT NOTICE - JURISDICTION - VOID OR VOIDABLE SALE - RES JUDICATA - SUBSEQUENT AMENDMENT - RETROSPECTIVE EFFECT.
Fact of the Case:
Plaintiff filed a suit for declaration that the execution sale of the properties was null and void and that the defendant firm had acquired no title to them by virtue of the purchase at the court sale. The decree in execution of which the properties were sold had been obtained by the firm Pirthiraj Ganesh Das (the respondent in this appeal) against the firm Ganpatrai Balabux in Suit No. 56 of 1926 of the Original Side of the Calcutta High Court, and on leave having been obtained from that Court, according to the provisions of Sub-rule (2) of Rule 50 of Order 21, Civil P.C., and on the decree having been transferred to the Ranchi Court, it was executed in that Court against the appellant, and the properties in suit were sold on 3-9-1936 and purchased by the respondent firm who were the decree-holders.
Finding of the Court:
1. The sale is not without jurisdiction because the notice under Order 21, Rule 22 had not been issued. 2. The appellant had not only knowledge of the execution proceeding but had litigated actively and put forward all possible objections for defeating the execution case. 3. The principle of res judicata is applicable in the case of a Judgment debtor in similar circumstances; and we cannot in this case overlook the provisions of Sub-section (1) of Sec. 47 which runs as follows: “All questions arising between the parties to the suit in which the decree wag passed or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit,” 4. The new sub-rule (3) of Order 21, Rule 22, Civil P.C., merely interprets the provisions which already existed, and most probably this sub-rule was added to the existing provision with the intention that the Courts of Justice may not hereafter feel any difficulty in interpreting it.
Issues: 1. Whether the sale without notice under Order 21, Rule 22, Civil P.C., is a nullity? 2. Whether the appellant is estopped from raising the objection of non-issue of notice under Order 21, Rule 22, Civil P.C., due to res judicata? 3. Whether the new Sub-rule (3) of Order 21, Rule 22, Civil P.C., has retrospective effect?
Ratio Decidendi: 1. A sale held without issue of notice under Order 21, Rule 22 is a void sale of the latter class as distinguished from a voidable sale which means that the sale is valid and binding against the particular person concerned, unless and until it is set aside by him in an appropriate proceeding. 2. Where in an earlier execution proceeding a decree-holder could have raised a plea that the Judgment-debtor; had an interest in certain property which could be attached under his decree but that the plea was not raised through his own default and the execution was dismissed, the dismissal operates as res judicata in the subsequent execution proceedings and even apart from the provisions of Sec.11, Civil P.C., it should be contrary to the principle to allow him in fresh proceedings to renew the same claim, namely, that the properties in question were properties liable to attachment. 3. The new sub-rule (3) of Order 21, Rule 22, Civil P.C., merely interprets the provisions which already existed, and most probably this sub-rule was added to the existing provision with the intention that the Courts of Justice may not hereafter feel any difficulty in interpreting it.
Final Decision: Appeal dismissed with costs.
Narayan, J.
1. This is a plaintiffs appeal arising out of a suit in which a declaration was sought that the execution sale of the properties which are the subject-matter of the suit was null and void and that the defendant firm had acquired no title to them by virtue of the purchase at the court sale. There was also a prayer for recovery of possession of the properties in question in case the plaintiff was found to be out of possession. The decree in execution of which the properties were sold had been obtained by the firm Pirthiraj Ganesh Das (the respondent in this appeal) against the firm Ganpatrai Balabux in Suit No. 56 of 1926 of the Original Side of the Calcutta High Court, and on leave having been obtained from that Court, according to the provisions of Sub-rule (2) of Rule 50 of Order 21, Civil P.C., and on the decree having been transferred to the Ranchi Court, it was executed in that Court against the appellant, and the properties in suit were sold on 3-9-1936 and purchased by the respondent firm who were the decree-holders. Thereafter this appellant filed an application under Order 21, Rule 90, Civil P. C., for setting aside the sale, but his application was dismissed after contest by the respondent. He then instituted the suit out of which this appeal arises and sought to impugn the sale on various grounds.
2. The defendant firm resisted the plaintiffs claim and contended that the sale at which they had purchased the properties was a valid sale and that the present suit was barred according to the provisions of Order 21, Rule 92 (3), Civil P, C.
3. The appellant in this Court was constrained to abandon the several contentions which he had pressed with vehemence in the Court below, and his counsel confined his argument only to the following two points : (1) That there was no decree against this appellant at all and his separate properties could not, therefore, be sold in execution of that decree; and (2) that the executing Court had no jurisdiction to sell the properties in question, because no notice had been issued by it according to the provisions of Order 21, Rule 22, Civil P. C.
4. Before I give my finding on the two issues canvassed in this Court, it is necessary to state some more facts. The decree that had been passed by the High Court of Calcutta had been transferred to the Ranchi Court for execution and the first application for execution had been filed some time in the year 1928. In that execution case, which was Ex. case No. 80 of 1928, the decree-holders sought to execute the decree against this appellant as a partner of the Judgment-debtor firm. The appellant appeared in that execution case and filed an objection which was registered as an objection under Sec. 47, Civil P. C. That execution case was, however, dismissed on 4-1-1932, and along with the execution case the objection case was also dismissed without adjudication. While these execution and miscellaneous cases were pending in the Ranchi Court, this appellant filed a title suit in the High Court of Calcutta to set aside the ex parte decree that had been passed in 1926. It appears that this suit was dismissed according to the provisions of Order 9 Rule 8, Civil P. C., and an application for rehearing filed by this appellant according to the provisions of Order 9 Rule 9, Civil P. C, was also dismissed Thereafter, an application was filed by the decree-holder firm for leave to execute the decree against this appellant under the provisions of Order 21, Rule 50 (2), Civil P. C., and leave was granted. The appellant then moved the Court for revoking the order granting the leave, but his application was dismissed. In September 1934 the execution case in which the properties in suit were sold was filed in the Ranchi Court and in this case the appellant filed a petition of objection under Sec. 47, Civil P. C. This application was disposed of by the learned Subordinate Judge after a keen contest by the decree holder, and the Judgment of the learn
An indispensable Tool for Legal Professionals, Endorsed by Various High Court and Judicial Officers
Please visit our Training & Support
Center or Contact Us for assistance
Scan Me!
India’s Legal research and Law Firm App, Download now!
For Daily Legal Updates, Join us on :
Back to top
