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PATNA HIGH COURT
Imam and S.K.Das JJ.
Ramdhari Singh
Versus
Saligram Singh
A.F.A.O. No. 282 of 1949 ;
Decided On : FEBRUARY 17, 1954
EXECUTION OF DECREE - JURISDICTION - NOTICE UNDER ORDER 21, RULE 22, CIVIL PROCEDURE CODE - NON-SERVICE - EFFECT - SALE WITHOUT JURISDICTION - LIMITATION - ARTICLE 181, LIMITATION ACT - NOTICE TO AUCTION-PURCHASER - NECESSITY.
Fact of the Case:
The judgment-debtors filed an application to set aside a sale held in execution of a decree for arrears of rent. The grounds for the application were that the sale was without jurisdiction, that there was material irregularity and fraud in publishing and conducting the sale, and that the judgment-debtors had suffered material injury by reason of the irregularity and fraud. The Munsif allowed the application and set aside the sale. On appeal, the Additional District Judge reversed the Munsif's decision, holding that the application was barred by limitation and that no notice of the application had been given to the auction-purchaser.
Finding of the Court:
The High Court held that the sale was without jurisdiction because no notice under Order 21, Rule 22, Civil Procedure Code, had been served on the judgment-debtors. The Court also held that the application was within time, as the judgment-debtors had filed it within three years from the date when the right to apply accrued. The Court further held that the failure to serve a notice on the auction-purchaser did not vitiate the proceedings, as the auction-purchaser had actual notice of the proceedings.
Issues: 1. Whether the sale was without jurisdiction due to the non-service of notice under Order 21, Rule 22, Civil Procedure Code? 2. Whether the application to set aside the sale was barred by limitation? 3. Whether the failure to serve a notice on the auction-purchaser vitiated the proceedings?
Ratio Decidendi: 1. The Court held that the sale was without jurisdiction because no notice under Order 21, Rule 22, Civil Procedure Code, had been served on the judgment-debtors. The Court relied on the decision in Kameshwar Singh V/s. Bishwanath Jha, AIR 1947 Pat 33 (B), which held that Sec.158B(2), Bihar Tenancy Act, is a corresponding provision of Order 21, B. 22, Civil P. C., and the reason why under Sec.148 (1), Bihar Tenancy Act, the notice under Order 21, Rule 22 has been dispensed with in rent executions is because a corresponding mandatory notice has been prescribed under Sec.15SB(2), and failure to comply with that section would have the same consequence as failure to comply with the provisions of Order 21, Rule 22, in cases where that provision is applicable. 2. The Court held that the application was within time, as the judgment-debtors had filed it within three years from the date when the right to apply accrued. The Court applied Article 181 of the Limitation Act, which provides a limitation period of three years for applications to set aside a sale held in execution of a decree. 3. The Court held that the failure to serve a notice on the auction-purchaser did not vitiate the proceedings, as the auction-purchaser had actual notice of the proceedings. The Court relied on the decision in Charu Chandra V/s. Behari Lal, AIR 1925 Cal 157 (I), which held that the object of Rule 92 insisting upon notice is to entitle every party interested to be heard; therefore, if a party has actual notice, the absence of formal notice does not vitiate the proceedings.
Final Decision: The High Court allowed the appeal, set aside the decision of the Additional District Judge, and restored the decision of the Munsif.
Das, J.
1. This is a miscellaneous second appeal by the judgment-debtors. The relevant facts he within a short compass.
The respondent-decree-holders obtained a decree for arrears of rent in 1941. This decree was put in execution and the holding of the judgment-debtors was sold and purchased by the decree-holders on 6-4-1943. The holding consisted of 17 kathas and 15 dhurs and was purchased for a consideration of Rs. 23-14-9, which was the decretal amount. On 29-8-1943, the respondent-decree-holders, it is stated, obtained delivery of possession.
On 9-10-1947, the judgment-debtors made an application for setting aside the sale on various grounds, one of which was that the decree was executed without jurisdiction. It was also alleged that all the processes in execution were fraudulently and deliberately suppressed and. property which was worth Rs. 2,000.00 was sold for a grossly inadequate price. The judgment-debtors alleged that they came to know of the sale on 10-9-1947, and they filed the application within one month of the date of knowledge.
2. The learned Munsif who dea.lt with the application in the first instance held that no notice under Sec.158B(2), Bihar Tenancy Act, was issued; the notice which purported to issue under Order 21, Rule 22, Civil P. C., was not served on the judgment-debtors; there was no compliance with the provisions of Section 163, Eibar Tenancy Act; the processes of attachment, sale proclamation and dakhaldehani were not served on the spot; and the judgment-debtors came to know of trie sale on 10-9-1947. On these findings, the learned Munsil held that the sale was without jurisdiction; and that in any event, there was maienai irregularity and fraud in publishing and conducting the sale and the judgment-debtors had suffered material injury by reason of the irregularity and fraud. The learned Munsif held that the application was within time and accordingly he allowed the application with costs and set aside the sale.
3. There was an appeal to the learned District Judge. The Additional District Judge, who heard the appeal, reversed the finding of the learned Munsif on the question of limitation. The learned Additional District Judge held that the evidence of one of the judgment-debtors itself showed that he came to Know of the sale on 7th or 8th September 1947, and inasmuch as the application for setting aside the sale was filed on 9-10-1947 it was filed out oi time by two days.
The learned Additional District Judge further held that immediately after the auction purchase ana the delivery of possession, the respondent decree-holders had settled the land with a tenant named Rajkurnar Singh and that no notice of the application was given to Rajkumar Singh. The learned Additional District Judge held that in the absence of notice to Rajkumar Singh, the application for setting aside the sale was not maintainable.
The learned Additional District Judge affirmed, however, the other findings of the learned Munsif, namely, the finding that the property was grossly undervalued and sold for an inadequate price which caused substantial loss to the judgment-debtors and that the notice under Order 21, Rule 22, Civil P. C., and the processes in execution were not. served on the judgment-debtors. In view of his finding on the question of limitation, the learned Additional District Judge allowed, the appeal and set aside the order of the learned Munsil.
4. A preliminary point has been taken on behalf of the respondent-decree-holders that no-second appeal lies. Learned counsel for the respondent decree-holders has referred to Sec.153, Bihar Tenancy Act, and has contended that as the order on appeal was passed by the additional District Judge and the amount claimed in the suit did not exceed one hundred rupees, no appeal lies from the order of the Additional District Judge.
Alternatively, he has contended that even under the Code of Civil Procedure, there is no second appeal from an order passed on an application
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