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Sundrabai Dalichand Vs. Moreshwar Mahadeo Gokhale and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberA.F.O. No. 18 of 1957
Judge
Reported inAIR1959Bom178; (1958)60BOMLR482; ILR1958Bom765
ActsCode of Civil Procedure (CPC), 1908 - Sections 47 - Order 21, Rules 64, 66(2) and 90 - Order 5, Rule 16
AppellantSundrabai Dalichand
RespondentMoreshwar Mahadeo Gokhale and anr.
Appellant AdvocateM.V. Paranjape, Adv. for ;V.S. Desai, Adv.
Respondent AdvocateK.J. Abhyankar and ;N.D. Dange, Advs.
Excerpt:
.....16 - notice under order xxi, rule 66(2), served upon wrong person and court treating it as valid service--sale of judgment-debtor's property--application by judgment-debtor under order xxi, rule 90, to set aside sale--whether non-service of notice upon judgment-debtor a material irregularity in publishing or conducting sale under order xxi, rule 90--expression 'any other person' in order v, rule 16, what persons are included in.;an order was made by the court to issue a notice under order xxi, rule 66(2), of the civil procedure code, 1908. the bailiff of the court instead of serving the notice upon the judgment-debtor served it upon a wrong person. the court subsequently treated the notice upon that wrong person as valid service and the property belonging to the judgment-debtor was..........served upon the appellant. the facts are that, after the order for sale was made under order 21, rule 64 civil procedure code an order for issue of notice to the appellant was made. however, that notice was not served personally upon the appellant. instead the notice was served on one trimbak sakharam. the contention of the appellant is that this trimbak was a total stranger to her, and was not entitled to accept service for and on her behalf. the learned civil judge has taken the view that trimbak was entitled to take service of the notice and the service of notice on trimbak was a valid service upon the appellant. the appellant is a pardanishin lady. her evidence was that whenever processes were brought for service to her, she used to direct the bailiff to go to one goverdhan.....
Judgment:

1. This is an appeal from the order dated 6-12-1956, passed by the learned Civil Judge (Senior Division), Ialgaon, below application Exhibit 27 in Special Darkhast No. 39 of 1954, by which the learned Judge rejected the application made by the judgment-debtor No. 6, for setting aside a sale. The application was made under Order 21, Rule 90 of the Civil Procedure Code.

2. It is common ground that, in execution of the decree in Darkhast No. 39 of 1954, a property belonging to the appellant has been sold, and the sale was confirmed on 18-5-1955. It is also common ground that respondent NO. 2 is the auction purchaser. The aforesaid application was made by the appellant under Order 21, Rule 90 of the Civil Procedure Code for setting aside the sale. The main ground, on which the application was made, was that a notice under Order 21, Rule 66, Sub-rule (2) of the Civil Procedure Code had not been served upon the appellant. The facts are that, after the order for sale was made under Order 21, Rule 64 Civil Procedure Code an order for issue of notice to the appellant was made. However, that notice was not served personally upon the appellant. Instead the notice was served on one Trimbak Sakharam. The contention of the appellant is that this Trimbak was a total stranger to her, and was not entitled to accept service for and on her behalf. The learned Civil Judge has taken the view that Trimbak was entitled to take service of the notice and the service of notice on Trimbak was a valid service upon the appellant. The appellant is a pardanishin lady. Her evidence was that whenever processes were brought for service to her, she used to direct the bailiff to go to one Goverdhan Jaikisan. The latter was the judgment-debtor No. 1. Therefore, from the aforesaid evidence of the appellant, it is quite clear that the appellant had constituted the judgment-debtor No. 1 to be her attorney or agent for accepting service on her behalf. Therefore, if the notice had been served upon judgment-debtor No. 1, then, it would have been a valid service on the appellant. The aforesaid Trimbak Sakharam appears to be manager of one Jaikisan Rambilas factory. The exact connection of the judgment-debtor No. 1 with the aforesaid factory is not known. But, from the proceedings, it appears that the aforesaid Trimbak was working as the agent in the aforesaid litigation for and on behalf of the judgment-debtor No. 1. Therefore, Trimbak was the agent of the judgment-debtor No. 1. The learned Civil Judge has held that, because of the aforesaid position, which Trimbak occupied vis a vis the judgment-debtor No. 1, and because of the admitted fact that the judgment-debtor No.1 was constituted by the appellant an agent for the purpose of accepting service, the service on Trimbak was a valid service. I am unable to accept the line of reasoning adopted by the learned Civil Judge. From the aforesaid facts, it is quite clear that Trimbak, os far as the service on the appellant is concerned, was an agent of the appellant. it is well known that an agent is not entitled to delegate his authority to another agent. Under the aforesaid circumstances, in my opinion, Trimbak was entirely a stranger so far as the appellant was concerned, and service on him cannot be accepted as valid service. The learned Civil Judge has attached some importance to the facts that Trimbak appeared in the course of the aforesaid proceedings, asked for several adjournments, and even paid a sum of Rs. 800 towards partial satisfaction of the decree. However, in my opinion, the aforesaid facts have no relevance so far as the question of service on the appellant is concerned. In the first instance, it is important to notice that the record does not leave any doubt that whenever Trimbak appeared in the darkhast, he always appeared as the agent and constituted attorney of judgment-debtor No. 1. At no time, did he purport to appear in the proceedings as the agent of the appellant. However, even if he had purported to appear as the agent of the appellant. I have no doubt whatsoever, that it would have had no effect whatsoever on the question of the validity or otherwise of the service on the appellant. If the service is accepted as good service merely because an unauthorised person, who had accepted service, appears in the course of the proceedings, then, one would be guilty of the fallacy of peitio principii. Under the circumstances, I have come to the conclusion that the record does not leave any doubt that Trimbak was not an agent of the appellant, and he was not entitled to receive service for and on behalf of the appellant. Therefore, in the case, there has been, in fact, no service on the present appellant of the notice under Order 21, Rule 66. The contention of the learned advocate for respondent No. 2 was that in order a service may be valid service, it is not necessary that the service should be effected upon an agent of the judgment-debtor. It was contended that under Order 5, Rule 16 of the Civil Procedure Code, service can be effected not only upon an agent, but also upon any other person. The submission was that the expression 'any other person' on Order 5, Rule 16, included a stranger like Trimbak Sakharam. I do not think I can accede to the aforesaid submission. In my opinion, the expression 'any other person' has reference to those other persons, who have been mentioned in the proceeding rules of Order 5, who, according to those rules, are entitled to receive service on behalf of the parties to a litigation. Therefore, unless and until, the learned advocate for respondent No. 2 is able to satisfy me that the aforesaid Trimbak was entitled to accept service for and on behalf of the appellant, under any of the preceding rules of Order 5, I cannot accept service on Trimbak as a valid service on the present appellant. He has failed to do so. Therefore, in my opinion, the appellant has succeeded in proving that the notice under Order 21, Rule 66 was not validly served upon her.

3. The second question for consideration in the present appeal is whether non-service of the aforesaid notice is a material irregularity within the meaning of Order 21, Rule 90, Civil Procedure Code. The submission of the learned advocate for the appellant is that it is so. In support of this submission, the learned advocate forth appellant has relied on a ruling reported in Jaggan Nath v. Daud, AIR 1923 Lah 592. In that case, it was decided that the failure of the Court to issue notice under Order 21, Rule 66, before drawing up the proclamation of the sale, is an irregularity in publishing or conducting the sale within the meaning of Rule 90 of Order 21, Civil Procedure Code. This submission was repelled by the learned advocate for the respondents on two grounds. It was firstly contended that, irrespective of the question whether the non-issue of a notice is an irregularity or an illegality, the irregularity or illegality is not one in publishing or conducting the sale. It was, therefore, contended that the provisions of Order 21, Rule 90 Civil Procedure Code, did not at all apply to the facts of the present case. The second contention as that non-issue of a notice under Order 21, Rule 66 was not merely an irregularity, but it was an illegality, and therefore, the proper remedy of the present appellant was not an application under Order 21, Rule 90, but her proper remedy was to make an application under Section 47, Civil Procedure Code, or to file a regular suit for setting aside the sale. In view of the aforesaid tow contentions of the learned advocate for the respondents, it is necessary, first of all, to determine the question as to whether non-service of notice upon the present appellant is an irregularity or an illegality. If it is an illegality, then, thee is no doubt whatsoever that the provisions of Order 21, Rule 90 will not come into play. If however, it is not an illegality, but it is an irregularity, then, the question will have to be considered as to whether the irregularity is one in publishing or conducting the sale. The learned advocate for the respondents drew my attention to the ruling reported in Narayan v. Ramchandra . In that case, it was held that an omission to issue notice of sale under Order 21, Rule 66 Civil Procedure Code, is an illegality and not merely an irregularity. However, in my opinion, the facts of the present case are distinguishable from the facts of the aforesaid case. This is not a case of total omission to issue a notice under Order 21, Rule 66. In the present case, an order was made by the Court to issue a notice under Order 21, Rule 66. But what has happened in the case is that notice was not served upon the present appellant. Therefore, in the present case, we are not dealing with a situation in which the Court has omitted to issue a notice altogether under Order 21, Rule 66, but the situation is one in which a notice was so issued, but that notice did not come to be served in accordance with law. In my opinion, therefore, in the present case, it cannot be held that it was an illegality. Having regard to the fact that the Court had ordered that a notice should issue, it is quite clear that the Court did not take any proceedings in the case without ordering that the other side should be called upon to have its say in the matter. The Court has done its duty in the matter. What happened was that the bailiff of the Court served the notice upon the wrong person and the Court subsequently treated the notice upon that wrong person as valid service. In my opinion, therefore, there was no question of any illegality involved. What had happened was only an irregularity had led to the non-appearance of the appellant in the proceedings, it must be regarded to be a material irregularity.

4. The second question for consideration is whether that material irregularity is in publishing or conducting the sale. The contention of the learned advocate for the respondents was that the irregularity that had occurred was not in publishing the sale; that irregularity had occurred before actually the sale was published. It was contended that, in order that Order 21, Rule 90 may apply, it is necessary that the irregularity must have taken place after the Court had issued the sale proclamation. Therefore, the contention of the learned advocate for the respondents was that, is the irregularity had taken place before actually the Court had issued a sale proclamation, it cannot be said that the irregularity was in publishing the sale. I do not think I can put such a narrow interpretation on the expression 'in publishing' as used in Order 21, Rule 90, Civil Procedure Code. In this connection, it is important to notice that the proceedings relating to a sale begin from the time that an order is made under Order 21, Rule 64. There are some authorities which say that, even an order of attachment has connection with the publication of the sale. But, it is not necessary for me to consider in the present proceedings whether that view is correct or not. But, in my opinion, the moment any further proceedings are started by the Curt after an order for sale under Order 21, Rule 64 is made, the Court necessarily takes all those proceedings in order that the prospective sale may be proclaimed, and, in my opinion, a notice under Order 21, Rule 66 to the judgment-debtor is an important step towards the preparation and the publication of the sale. In this connection, it is important to notice that Order 21, Rule 90 does not use the expression 'irregularity in the sale proclamation' but states that the irregularity must be in relation to the publication of the sale. In my opinion there is a clear distinction between the expressions 'publication of sale' and 'issue of a sale proclamation'. Under the aforesaid circumstances, I have come to the conclusion that an issue of a notice under Order 21, Rule 66 is a step which is taken by the Court in publishing the sale, and therefore, it is quite clear that if that notice has not come to be served upon the judgment-debtor, then, the irregularity must be considered to be one which has occurred in the publication of the sale.

5. However, as is well known, a mere irregularity in the publication of a sale does not entitle the judgment-debtor to get the sale set aside. There are two other important points which, it is necessary for the judgment-debtor to prove, in order to succeed in an application under Order 21, Rule 90, and those two other points are that it must be proved that the applicant has sustained substantial injury and that the substantial injury was caused by reason of that material irregularity. In the present case, the appellant urged that the substantial injury, which had been caused to her, was that her property, which was really worth Rs. 10,000 ad been sold for a grossly inadequate price of Rs. 2,400. The learned Civil Judge has taken an adverse view on this part of the appellant's case. I do not agree with the conclusion arrived at by the learned Civil Judge. The appellant has proved one sale. The sale-deed is Exhibit 61, dated 2nd December, 1950. The purchaser under that sale is the witness Kanhyalal, Exhibit 59. The property which was sold under this sale was practically an open piece of land, measuring 200 square yards with only a plinth. The property was sold for Rs. 7,500. Therefore, the sale price works out approximately at Rs. 37 per square yard. The property in suit has been sold for a price of Rs. 2,400 only. The suit property measures 465 square yards with a house on it. The sale price works out at Rs. 5 per square yard. Therefore, the difference in price realised at the auction sale and the price which was realised at the aforesaid private sale is about 7 times. There is no doubt whatsoever that the property sold at the auction and the aforesaid property the sale of which is to be compared, were situate in the same locality. There is nothing on the record to show that the property which was sold at the private sale had certain special characteristics which entitled it to a higher price than the property sold at the auction sale. The learned Civil Judge has not relied upon the aforesaid sale on the ground that the seller has not been examined. At the same time, it is important to notice that the purchaser has been examined in the case. The mere fact that the seller has not been examined in the case does not lead to the necessary conclusion that the sale was a forced one. There is nothing in the judgment of the learned Civil Judge which shows that, in the cross-examination, the purchaser Kanhyalal, Exhibit 59, had conceded that the sale was a forced one. The second ground which the learned Civil Judge has given for not relying upon the aforesaid sale is that the price which is realised at a Court auction sale is always less than the price which is realised in a private sale. This is because there is no warranty of title in an auction sale. This is true. But, still, in my opinion, it is impossible that the price to be realised at a court auction should be about 1/7th of the market price of the property concerned. In my opinion, the appellant has successfully proved by reference to the aforesaid sale that the property has been sold for a grossly inadequate price. In this connection, it is important to notice that the property which has been sold did not belong jointly to the appellant & her co-judgment-debtor No. 1. The property exclusively belonged to the appellant. It is not improbable that, if the present appellant has been apprised of the sale, and if any prudent person on her behalf had appeared at the time of the sale, he might have been able to bring a purchaser who would be willing to pay a higher price. Under the circumstances, in my opinion, substantial injury has been done to the present appellant inasmuch as a property which was really worth several times the price, which has been realised, has been sold for a grossly inadequate price.

6. The next point for consideration is whether the substantial injury arises on account of the aforesaid material irregularity. I have no hesitation in reaching a conclusion on this subject in favour of the present appellant. Having regard to the fact that the present appellant had no notice of the sale proceeding, it is highly probable that her case has gone by default. At least, it appears to me to be crystal clear that if the appellant had known that the property was being sold only for Rs. 2,400, whereas it was worth much more, the appellant would have certainly taken steps to bring the aforesaid fact to the notice of the Court and got the sale postponed or would have exerted her every nerve to see that purchasers came forward to pay a higher price.

7. For the aforesaid reason, I have come to the conclusion that he appeal should be allowed. I allow the appeal. I set aside the order of the learned Civil Judge. I grant the application. I set aside the auction sale. Each party to bear its own costs in both the Courts.

8. Appeal allowed.


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