Failure to serve proper notice under Order 21, Rule 16 on the assignor of the decree renders the execution of the decree unlawful and the sale void.

JUDGMENT

Panton, J. - This is an appeal from an order of the Subordinate Judge of Rangpur, reversing an order of the Munsif, first Court, Kurigram. The matter relates to execution proceedings. A decree for rent was made on the 21st February 1922. On the 6th March 1924 the decree-holder sold the decree to appellant 1. On the 29th April 1924 the appellant sought to execute the decree. On the 13th May 1924, he prayed for service of notice on the judgment-debtors. This notice was in the form prescribed for a notice under Order 21, Rule 22. But in the body of it mention is made of the fact of the appellant's purchase of the decree. The order sheet in the case records that this notice was served. On the 5th July 1924, the appellant purchased the property at the execution sale and was thereafter put into possession. On the 13th November 1924, the judgment-debtor made an application purporting to be an application under Order 21, Rule 90, and Section 47, Civil P.C. to have the sale set aside on the ground of irregularity in publishing and conducting it, but without reference to an alleged defect in the notice under Order 21, Rule 16, to which I shall presently refer. On the 30th March 1926, the judgment-debtor made another application purporting to be an application u/s 47, complaining that no notice under Order 21, Rule 16, had been served. Both these applications were dismissed by the munsif. On appeal to the subordinate judge, this order was set aside on the ground that no notice under Order 21, Rule 16, had been served upon the original decree-holder who had assigned the decree.

2. In appeal, it is urged, first, that both these applications were barred by limitation; secondly, that the judgment-debtors did in effect have the necessary notice and showed no cause against the execution proceedings and that consequently this application was barred by constructive res judicata; thirdly, that the notice to which I have referred, although it was in the form prescribed for a notice under Order 21, Rule 22, did in fact state that the applicant was an assignee of the decree and that for all practical purposes this was a notice under Order 21, Rule 16; fourthly, it is urged that so far as Order 21, Rule 90, is concerned it applies only to irregularities in publishing and conducting the sale and not to events which happened before. Finally, it was argued that the finding of the Court below that the price at the sale was inadequate is based on no evidence.

3. So far as we are concerned with the application under Order 21, Rule 90, the present application was clearly barred by limitation and this part of the case needs no further consideration.

4. The real question for our decision is as to the effect which must be given to the failure of the present appellant to serve proper notice under Order 21, Rule 16. Even if the notice to which I have referred, namely, the notice purporting to be under Order 21, Rule 22, can be taken to be in effect one under Order 21, Rule 16, on the judgment-debtor, id is plain that there was no notice on the assignor of the decree as the rule requires. It was held in Kassum Goolam Hoosein Vazir v. Dayabhai Amarsi [1911] 36 Bom. 58 that execution of a decree without service of the necessary notice on the assignor of the decree is not merely irregular but unlawful. This decision was followed in Notan Das v. Lachhman Singh AIR 1921 Lah. 143, where, after a review of the authorities, the learned judges held that a sale of this description was void. A contrary view was taken in Brajlal Marwari v. E.M. Atkinson [1920] 5 Pat.L.J. 639. But in our opinion the facts here are such as will not admit of the application of the principle of Mungul Pershad Dichit v. Grija Kant Lahiri [1881] 8 Cal. 51 and the sale being a nullity no question of limitation arises: see Jogeshwar Mahata and Others Vs. Jhapal Santal and Others, AIR 1924 Cal 638 . In this view of the case it is not necessary to consider the other points which have been raised.