Notice under Rule 22, Order 21, Civil P.C. is a condition precedent for execution proceedings, but active litigation and technicality may warrant a different approach.

JUDGMENT

Rankin, C.J. - This was a mortgage suit instituted in 1923 and the subject matter of the mortgage appears to be a rice mill and certain properties connected therewith. It is unnecessary to go into details as to the parties defendants in the suit. It is enough to say that there were three defendants and that, on 2nd December 1924, there was a compromise decree according to which one of the parties was to continue in possession as receiver and certain payments were to be made-one payment was to be made immediately and the other payments were to be made in stated instalments. There was a provision in the decree as to the meaning of which some question now arises to the effect that

in default of payment of two consecutive instalments by the receiver and in breach of the terms mentioned in Clause (D),

that was the covenant to insure

the plaintiff will be able to execute the decree without making it absolute as against any or all of these defendants.

2. Now an application for execution of the decree was filed on 14th January 1927 and, instead of noticing that more than a year had elapsed since the date of the decree and instead of issuing notice under Order 21, Rule 22, Civil P.C., the following order was simply passed: "Issue notice under Order 21, Rule 66, Civil P.C." It appears that this notice about the settlement of the sale proclamation was served upon all the three judgment-debtors and on 21st May 1927, the judgment-debtors objected to the valuation. A good many hearings over this question of the valuation to be inserted in the proclamation of sale took place before the learned Judge and finally the learned Judge on 24th May decided that, as there was considerable divergence in the valuation put by either party, the sale proclamation should not issue without the valuation being fixed. His order goes on:

As suggested by the decree-holder and agreed to by the judgment-debtor, Babu Benoy Krishna Roy, Secretary, Rice Mill Association, Tollv-gunge, is appointed to fix the valuation.

3. Thereafter this gentleman made his report and there was a great deal of discussion about that and, on 18th June-; 1927, the learned Judge put the valuation, at Rs. 52,000 and directed the proclamation of sale to issue. From that order, there was an appeal taken to this High Court upon the question of valuation and that appeal was dismissed. The case going back to the learned Judge, the judgment-debtors objected among other things in August 1921, that the sale-could not proceed because originally in; January 1927 no notice under Rule 22, Order 21, Civil P. C, had been issued and: they relied upon the decision of the Privy Council in the case of Raghunath Das v. Sundar Das Khetri AIR 1914 P.C. 129 and upon other decisions in the same sense. The learned Judge gave effect to that objection. He said:

It is further pointed out that the judgment-debtor did appear on notice under Order 21, Rule 66 and objected to the valuation which was thereafter fixed. But this does not do away with the objection that there has been no notice under Rule 22.

4. Mr. Chippendale contends before us in like manner that, as it has been held that notice under Rule 22 is a condition' precedent and without it the Court has no jurisdiction, this objection can be taken at any time. The first question on this appeal is whether that contention is correct. In my judgment, it is not correct. It is quite unnecessary to push the abstract logic of the case of Raghunath Das v. Sundar Das Khetri AIR 1914 P.C. 129 to this ridiculous extreme. There was a case-somewhat similar to this before the High-Court of Patna, namely the case of Fakhrul Islam and Others Vs. Bhubaneshwari Kuar, AIR 1929 Patna 79 . In that case, execution had proceeded and an appeal was taken to the High Court on the ground of absence of notice tinder Rule 22 and the High Court set aside the execution proceedings. The case went back to the executing Court and, after further proceedings, a sale was directed. Thereupon an obj