1. This is a judgment-debtor's appeal from an order arising out of execution proceedings.
2. The decree-holder Yeshwantrao (respondent No. 2) obtained a decree for money against the appellant. In execution of that decree occupancy field No. 129 of mouza Chichala, tahsil Wardha, was attached and was eventually sold; the auction-purchaser thereof being respondent No. 1. The auction sale, it may be mentioned, was held on 17-3-1952 and was confirmed on 12-4-1952. On 24-6-1952, the appellant made an application under Section 47 of the Code of Civil Procedure on the ground that the sale was effected without service of notice on him under Order 21, Rule 66 (2) of the Code. The appellant also stated in that application that though notice of sale was ordered to issue to him by the Court it was actually not served on him though the process-server had made a false report to the effect that the appellant had refused to accept the service. The executing Court upheld the appellant's contention and set aside the sale.
3. In appeal, the learned Additional District Judge, Wardha, held that the application of the appellant fell within Order 21, Rule 90 and that as it has not been made within thirty days of the date of sale it was barred by time. The question therefore is whether the application of the appellant was under Order 21, Rule 90 or was under Section 47 of the Code of Civil Procedure.
4. It has been held by Bose J. (as he then was) in Narayan v. Ramchandra , that holding a sale without notice to the judgment-debtor goes to the root of the jurisdiction of the Court and that such a sale being a nullity an application for setting it aside would fall under Section 47 of the Code and not under Order 21, Rule 90 thereof. This decision is sought to be distinguished on behalf of the respondents by Shri Mangalmurti on the ground that in the case before Bose J. no notice had at all been issued whereas in the present case notice had been ordered to be issued though perhaps it was not served on the appellant. He further says that even according to the appellant the process-server had committed a fraud in making a false report of the service and that therefore this matter would fall under Order 21, Rule 90 and not under Section 47 of the Code. In support of his contention Shri Mangalmurti relies on the well-known decision in Malkarjun v. Narhari ILR 25 Bom 337 , and says that it is the issue of notice which gives jurisdiction to the Court and that once the Court gets jurisdiction over a certain matter it does not lose it merely because notice is not duly served. In the case before their Lordships of the Privy Council what was being construed was a provision corresponding to Order 21, Rule 22 of the Code of Civil Procedure, whereas what fell to be construed in the instant case was Rule 66 of Order 21. Dealing with this matter Bose, J. has observed at pages 798-799 as follows :
'Order 21, Rule 22, which deals with what one might term the initial issue of notice on an execution application, after stating as a general rule that notice shall be issued (the language is mandatory) goes on to make certain exceptions. One of them is contained in the proviso to Sub-rule (1) and the other in Sub-rule (2). I can hardly think the rule would have been couched in this form if notice had not been considered a vital matter, and this is particularly so since, in the opinion of the Privy Council, it is opposed to 'natural justice' to try an issue without affording the other side an opportunity of being heard. See Balakrishna Udayar v. Vasudeva Ayyar ILR 40 Mad 793 : AIR 1917 PC 71. Therefore, it seems that, in genera], where the Code prescribes for the issue of notice, and particularly where it uses mandatory language, it does not envisage the possibility of its directions being disregarded except when it makes express provisions in that behalf.
Now when we turn to Order 21, Rule 66, we find no exceptions to the provisions in Sub-rule (2) which requires the issue of notice. The sub-rule runs thus:
'Such proclamation shall be drawn up after notice to the ...... judgment-debtor.'
Therefore, contrasting this with Rule 22, I am of opinion that the issue of notice is mandatory unless of course the judgment-debtor appears without notice and waives it.
Another reason which leads me to this conclusion is this. Sub-rule (2) of Rule 66 requires that the time and place of the sale shall be set out in the proclamation. No one will pretend that an omission to do this could be considered a curable irregularity. The fact that the issue of notice is required in the same sentence as this indicates to my mind that the intention was to place it on a par with the other matter so far as its importance is concerned. This is all the more so when one contracts the greater flexibility which is permitted in what follows, namely,
'and specify as fairly and accurately as possible'
On the whole, therefore, I agree with the appellate Court that the issue of notice under Order 21, Rule 66 (2) is mandatory and that the defect cannot be cured unless the judgment-debtor appears without notice and waives it.' Apart from that, it may be mentioned, that in Order 21, Rule 22 what is enjoined on the Court is only the issuing of a notice to the person against whom execution is applied for, whereas it would appear from the above quotation and from the language of Order 21, Rule 66 that something more is required to be done thereunder. It is one thing to say that the Court can do such and such a thing after issuing a notice and it is another thing to say that the Court shall issue a notice and nothing more. Where a thing can be done only after issue of a notice it necessarily follows that it can only be done after such a notice has been served. The jurisdiction of the Court to sell a property under Rule 66 (2) of Order 21, can only be derived after service of notice and cannot be obtained merely by ordering the issue of a notice.
5. Shri Mangalmurti contended that the fraud of the process-server in making a false report was a fraud in publishing the sale and that therefore the provisions of Order 21, Rule 90 are attracted. Now publishing the sale is something which can only be done after an order for sale is made. In the instant case, what has happened is that some fraud is committed prior to me making of the order for sale. Since that is the position it is difficult to see how Order 21, Rule 90 can at all be attracted. In the circumstances, the order of the lower appellate Court cannot be upheld, and must be set aside.
6. Accordingly, I set it aside and remit the appeal to it for decision on other points raised in the appeal including the question as to whether fraud has at all been committed by the process-server as alleged.
7. Costs of this appeal will abide the event.
8. Order accordingly.