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Bandu Hari Vs. Bhagya Laxman and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai High Court
Decided On
Case NumberSecond Appeal No. 449 of 1950
Judge
Reported inAIR1954Bom114; (1953)55BOMLR753; ILR1954Bom224
ActsCode of Civil Procedure (CPC), 1908 - Sections 248 - Order 21, Rules 22 and 66; Bombay Small Holders Relief Act; Infants Relief Act, 1874
AppellantBandu Hari
RespondentBhagya Laxman and ors.
Appellant AdvocateK.R Bengeri, Adv.
Respondent AdvocateS.G. Karnik and ;C.K. Bengeri, Advs.
Excerpt:
.....to do something, namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the courts for the best part of the last two years. , which has been enacted for the benefit and protection of judgment-debtors, has not been issued to a judgment-debtor, if he actually appears in execution proceedings and raises various objections, the object of giving him a notice under rule 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved, that if he does not then object to the execution on account of the failure to issue such a notice, he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such..........the suit property should be sold, and transferred the papers to the collector for carrying out the sale.the collector issued notices to the judgment-debtors. respondent 1, judgment-debtor 1, (referred to hereafter as the judgment-debtor), appeared and claimed the benefit of the bombay small holders belief act, which was then in force. he was given time to pay the amount due from him, but as he did not do so, the property was put up for sale and sold on 12-1-1944, after duo notice to him. it was purchased by the present appellant for rs. 170.thereafter the judgment-debtor again applied to the collector to give him the benefit of the small holders belief act. the collector gave him further time to deposit the amount due, but he failed to do so. the judgment-debtor then filed a suit for a.....
Judgment:

Chainani, J.

1. The material facts, so far as this appeal is concerned, are these. In 1939 respondent 3 filed a suit against respondents 1 and 2 for possession of the suit property which he had previously purchased. A consent decree was passed in that suit on 24-1-1941. By the compromise, respondent 3 gave up his claim to the suit land, while respondent 1, who it appears was the contesting defendant, agreed to pay him a sum of Rs. 125 ana interest thereupon in four equal instalments, the first instalment being payable in December 1941. The decree placed a charge on the suit property and provided that in case of default in the payment of any instalment, respondent 3 could recover the amount by sale of the suit property. As the first two instalments, which fell due in December 1941 and December 1942, were not paid, respondent 3 filed a darkhast for recovering the amount of these instalments by sale of the suit property.

This darkhast was filed on 12-4-1943, that is, more than two years after the date of the decree. Order 21, Rule 22, Civil P. C., provides:

'Where an application for execution is made morethan two years after the date of the decree...... the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause ...... why the decree should not be executed against him.'

No such notice was issued to the judgment-debtors, respondents 1 and 2. The Court passed an order that a sufficient part of the suit property should be sold, and transferred the papers to the Collector for carrying out the sale.

The Collector issued notices to the Judgment-debtors. Respondent 1, judgment-debtor 1, (referred to hereafter as the judgment-debtor), appeared and claimed the benefit of the Bombay Small Holders Belief Act, which was then in force. He was given time to pay the amount due from him, but as he did not do so, the property was put up for sale and sold on 12-1-1944, after duo notice to him. It was purchased by the present appellant for Rs. 170.

Thereafter the judgment-debtor again applied to the Collector to give him the benefit of the Small Holders Belief Act. The Collector gave him further time to deposit the amount due, but he failed to do so. The judgment-debtor then filed a suit for a declaration that the sale in favour of the appellant was illegal and not binding upon him. This suit was dismissed for default on 24-7-1945. The judgment-debtor made an application for setting aside the order of dismissal and restoring the suit to file, but that application was rejected on 3-12-1945. The sale was confirmed by the Collector on 29-10-1945, who then sent the papers to the Court for further action.

In the meantime, the remaining two instalments due under the decree had become due. The decree-holder, respondent 3, applied for an amendment of the darkhast, by which he sought to execute the decree for recovery of the amount of these Instalments also. The executing Court then issued a notice under Order 21, Rule 22, to the judgment-debtor. He appeared and contended that as notice under Order 21, Rule 22, had not been issued before the Collector was asked to sell the property, the Court had no jurisdiction to execute the decree, and that consequently the sale of the suit property was null and void. This contention was accepted by the Court, which accordingly declared the sale held in favour of the appellant to be void. The appellant and the decree-holder, respondent 3, appealed to the District Court, but their appeal was dismissed. The appellant has now filed a second appeal.

2. In -- 'Raghunath Das v. Sundar Das', AIR 1914 PC 129 (A) the Privv Council held that where a sale was held without the issue of a notice under Section 248 of the old Code, which corresponded to Order 21. Rule 22 of the present Civil P. C., the sale was void; see also the Full Bench decision of the Madras High Court in -- 'Rajagopala Ayyar v. Ramanujachariar', A. I. B. 1924 Mad 431 (B). The view taken in these cases was that a notice under this rule is necessary in order that the Court should obtain jurisdiction to sell the property in execution.

'Baghunath Das v. Sundar Das (A)', was considered by the Calcutta High Court in -- 'Chandra Nath v. Nabadwip Chandra', : AIR1931Cal476 . In that case no notice under order 21, Rule 22, was issued to the judgment-debtors, but a notice under Order 21, Rule 66, was issued to them. The judgment-debtors appeared and raised objections to the valuation of the property, which was to be mentioned in the proclamation of sale. After these objections had been disposed of, the judgment-debtors contended that the sale could not proceed, because no notice under Order 21 Rule 22, had been given to them. This objection was overruled and the execution was allowed to proceed.

in his judgment Rankin C. J. stated that it was (p. 477)

'quite unnecessary to push the abstract logic of the case of -- 'Raghunath Das Sunder Das', (A) to this ridiculous extreme.'

He relied on the decision of the Patna High Court in -- 'Fakhral Islam v. Bhubaneshwari Kuer' : AIR1929Pat79 (D) and went on to observe (p. 478):

'. .It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the Court because they have not got a formal notice to do something, namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years. I decline to push the doctrine so far as that and it seems to me that the execution should proceed.'

In 'Fakhrul Islam's case' (D) a notice under Order 21, Rule 22, had been issued, but not served upon the judgment-debtor. The judgment debtor appeared and contested the execution. It was held that all that Rule 22 requires is that an opportunity should be given to the judgment-debtor to show cause why execution should not proceed, and as this object had been achieved, the Court had jurisdiction to hold the sale. These cases were followed by the Madras High Court in -- 'Shiyali Ohetti v. Valjee Kanjee and Co.' AIR 1936 Mad 99 (E) and the Lahore High Court in --'Ladli Parshad v. Chaman Lal' AIR 1939 Lah 473 (F), The Rangoon High Court has taken the same view in -- 'Bimalanandhan v. United Refineries', AIR 1933 Ban 52 (G). In that case the judgment-debtor was fully aware of the steps that had been taken in connection with the sale, it was held that he could not subsequently challenge the sale, on the ground that no notice under Order 21, Rule 22, had been issued, in his judgment, Page C. J. observed (p. 54) :

'..It is to be borne in mind that Order 21, Rule 22, was enacted solely in aid of judgment-debtors and their legal representatives, and to prevent a 'snap' order being obtained for execution against a judgment-debtor or his estate. Now, when a statute or statutory rule is enacted granting a privilege to a particular person or class of persons, it may be, as in the case of the contractual incapacity of infante under the Infants Relief Act, 1874, that the statute or rule was enacted not merely for the benefit of the person or the class of persons to which it applies but upon grounds of public interest; and in such cases, no doubt, the parsons in whose favour the enactment works cannot be barred by their own conduct from invoking the aid of the statute or rule that has been passed in the interest of the public generally.... 'In each case, however, regard must be hadto the intention of the legislature in enactingthe rule and in cases such as the present case,in Which a rule has been enacted solely for theprotection of judgment-debtors and their estates,and not upon grounds of public policy or in theinterest of the public generally, in my opinionit is clear both upon principle and authority thata person in whose favour the rule operates mayby his conduct debar himself from the right ofinsisting upon its enforcement.'

In --'Anil Kumar v. Ahammed Ali' : AIR1940Cal23 (H) it was held that where the judgment-debtor has put in appearance and repeatedly askedfor adjournment of the sale, obviously with theknowledge of the sale, he cannot plead want ofnotice under Order 21, Rule 22, for setting aside thesale.

3. The principle underlying these cases, with which we agree, is that even though a notice under Order 21, Rule 22, Civil P. C., which has been enacted for the benefit and protection of judgment-debtors, has not been issued to a judgment-debtor, if he actually appears in execution proceedings and raises various objections, the object of giving him a notice under Rule 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved, that if he does not then object to the execution on account of the failure to issue such a notice, he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such notice had not been issued.

In this case, the judgment-debtor was given notices by the Collector. He was therefore, fully aware of the execution proceedings & had an opportunity to appear in these proceedings and object to the execution or to satisfy the decree. He actually appeared before the Collector more than once, 'claimed the benefit of the Bombay Small Holders Relief Act and also asked for and was given time to pay the amount due from him. The object of giving him a notice under Order 21, Rule 22, was, therefore, in fact achieved.

It is true that he did not appear before the Court but only before the Collector, but we do not think that that makes any difference. He raised certain objections, e.g. that he was entitled to the benefits, of the Bombay Small Holders Relief Act. He could also have objected, if necessary, by an application to the Court, to the sale being held without the issue of a notice to him under O. 21, R. 22. But he did not do so. It may, therefore, reasonably be presumed that he had no other contentions to raise. He must consequently be held to have waived the notice under the above rule and cannot now be heard to say that the sale is invalid for want of this notice.

4. We are, therefore, of the opinion that the sale of the suit property held by the Collector in January 1944 was not illegal. Accordingly we set aside the order passed by the executing Court on 7-1-1948, holding the sale to be void, which was confirmed in appeal by the Assistant Judge, and. dismiss the application made by the judgment-debtor respondent 1 for setting aside the sale with costs throughout, and direct that the executing Court should proceed further with the darkhast in accordance with law.

5. BAVDEKAR J. In my view, the case in 'AIR 1914 PC 129 (A)' proceeds upon the principle that where notice under Order 21, Rule 22 is not served, jurisdiction is not conferred upon the executing Court merely by his being made aware of the proceedings, for example, in that case, by a notice issued to the Official Assignee to show cause why his name should not be substituted for the insolvent judgment-debtor in that case. Where, therefore, he took no notice of the proceedings and subsequently the property was sold, it was open to the transferee from the vendee to maintain a suit upon the footing that the execution sale was without jurisdiction.

6. On the other hand, the case of the Calcutta High Court in : AIR1931Cal476 CO' proceeds upon the principle that the object of giving a. notice under Order 21, Rule 22, is to give an opportunity of putting forward any objections which he may have to the execution proceedings. Where, therefore, even though no notice under Order 21, Rule 22, is issued or served, the judgment-debtor appears and takes part in the proceedings and raises objections 'if 'claims certain reliefs, to which he is entitled, for example, in this case, under the Bombay Small Holders Relief Act, it must be taken that he has waived the notice, and that if he raised no objections such as could be raised when a notice under Order 21, Rule 22, is served upon him, he had no such objections to urge. He cannot subsequently, when his other objections are disallowed and the sale is confirmed, turn round and say that the Court had no jurisdiction to hold the sale.

7. Mr. Kamik has sought to distinguish the present case from that of : AIR1931Cal476 (C)' on the ground that in this case the sale was held not by the Court but by the Collector, and the notice in answer to which the judgment-debtor appeared before the Collector was also given by the Collector. But I fail to understand what difference that makes to the principle enunciated above.

8. Order accordingly.


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