The issuance of a notice under Order 21, Rule 22, CPC, after the amendment of Sub-rule (1) on 1st April 1936, was not a matter of jurisdiction, as the court could dispense with the notice in exceptional circumstances.

1. The question at issue in this appeal is whether the sale of certain properties held on the 15th September 1939, in an execution case was a nullity and without jurisdiction because no notice was issued or served against the judgment-debtor under the provisions of Order 21, Rule 22, Code of Civil Procedure.

2. The case of the plaintiff appellant is that no notice under O, 21, Rule 22, Code of Civil Procedure, was issued at the instance of the decree-holder. It appears that Ramjanam Mallah, the respondent, had obtained a decree against Sukhdeo Gond and his two sons. Ramjanam Mallah put the decree in execution and it appears from the order sheet that he made a prayer that notice under Order 21, Rule 22, and attachment should issue simultaneously. The executing Court, however, ordered that notice "under Order 21, Rule 22, need not be issued and only attachment should be issued.

Later on the appellant Sukhdeo Gond appeared in the execution case and filed objection under Sec. 60, Code of Civil Procedure, and Ss. 13, 14 and 15 of the Money-tenders Act. The parties adduced evidence in the matter and the executing Court released two plots under attachment and sale as prayed for by the appellant Sukhdeo Gond, but the other lands were sold on the 15th of September 1939. The argument addressed by learned counsel on behalf of the appellant is that the auction sale which took place on the 15th of September 1939, was a nullity, because there was no notice served upon the judgment-debtor under Order 21, Rule 22, Code of Civil Procedure.

We do net think that the argument put forward by learned counsel for the appellant is well founded. Our view is supported by a decision of this High Court in Balmakund V/s. Firm Pirthiraj Ganesh Das, AIR 1951 Pat 333 (A), where also there was a sale in an execution case and the point was taken on behalf of the judgment-debtor that the sale was a nullity because no notice under Order 21, Rule 22, Code of Civil Procedure, had been issued. It appears that there was a proceeding under Order 21, Rule 90, made on behalf of the judgment-debtor in that case and there was no objection taken in that case about the non-issue of notice under Order 21, Rule 22. It was held by the learned Judges constituting the Division Bench that there was no lack of jurisdiction in the executing Court in the circumstances appearing in that case. The reason was that the judgment-debtor had knowledge of the execution proceeding and put forward all possible objections for defeating the execution case. In the course of the judgment, Narayan, J., referred to the following observations of Kulwant Sahay, J., in Fakhrul Islam V/s. Bhubaneshwari Kuar, ILR 7 Pat 790: (AIR 1929 Pat 79) (B):-

- "All that Order 21, Rule 22, requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed."

"In my judgment, that is the substance and the meaning of the requirement. I do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice does not in substance get notice and is not given or does not take an opportunity to object to the execution of the decree, the sale which follows will be without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed. I have pointed out that, at one stage of the case, the matter was by agreement referred to a gentleman to report as to the amount of the valuation to be inserted in the proclamation of sale.

In the appeal which came previously before this Court, there was an affirmation that the sale was to take place and the proclamation was to issue. It appears to me to be merely piling unreason upon technicality t