1. This is an appeal against an order of the learned Additional Subordinate Judge of Mandya, in Mis. A. No. 2/48-49 setting aside the order of the Munsiff, Mandya, who had dismissed the application in Misc. No. 22/47-48 filed for setting aside a sale held in Execution No. 1117/43-44 on his file.
2. The facts of the case are that a decree was obtained against the petitioner and his brothers in O. S. No. 608/40-41 on the file of the Munsiff, Mandya, and that in execution of the decree the property in dispute was sold on 14-6-45. The sale was confirmed, possession was obtained and the purchaser paid kandayam as well as contribution and water rate for conversion of the dry land into wet land. It is after this that the petitioner, who is one of the judgment debtors, filed Mis. No. 22/47-48 for setting aside the sale on the ground that he had not been served with a notice under Order 21, Rule 22, C. P. C. It is clear from the records that no such notice was served on him though a notice of that kind was served in person on the eldest brother of the petitioner. A notice was issued to the petitioner to Hoskote where he is said to have been in service but it was returned unserved on the ground that he was not there. No further notice appears to have been taken. There is hardly any doubt that, the failure to issue such & notice is fatal to the validity of a sale. The decision in 24 Mys. L. J. is clear on the point and there are also numerous authorities of other Courts. The above decision of our Court has also been followed in numerous decisions of this Court subsequently.
3. It has, however, to be noticed that the petitioner was served with a notice under Order 21, Rule 66, C. P. C. and later on he was also served with a notice of the assignment of the decree. The notices were served on his house on his refusal to receive them. There is not sufficient material for holding that he was not served with these notices, the service of which has been held by the executing Court to be sufficient. This raises an important point of law. It is no doubt true that as observed by Fazl Ali J. in Brojobala Debi v. Madhusudhan Singh, A. I. R. (25) 1988 Pat. 162:
'As the absence of notice' under Order 21, Rule 22 goes to the root of the jurisdiction of the executing Court, the objection can be taken at anytime.'
This does not however mean that if the judgment-debtor was served with some notices during the course of further execution and was aware of those proceedings and had thus an opportunity to take the objection but failed to do so, it is open to him to stand by, allow all the proceedings to take place and take the objection by filing an application under Section 47, for getting aside the sale on the ground that he was not served with a notice under Order 21, Rule 22, C. P. C. That principles of res judicata are applicable even to execution applications is clear from the decision of our High Court in 42 Mys. H. C. R. 190, and it may be deemed that the purpose of a notice under Order 21, Rule 22 is served by the judgment-debtor being served with a notice in the execution case before sale.
4. There are a large number of decisions which support the view that a person who was not served with a notice under Order 21, Rule 22, C.P.C. but was served subsequently in the execution case and failed to take the objection of his not having been served with notice under Order 21, Rule 22 cannot be allowed to take that objection at a later stage. In Kora Led v. Punjab National Bank Ltd. Multan, A. I. B. (8) 1921 Lah. 384 it was held byShadilal J.:
'Where the Court did issue a notice to the judgment-debtor, though it was issued not under Rule 22, but under Rule 66, and the latter was afforded an opportunity to show cause why the decree should not be executed against him, the object aimed at by Rule 22 should be held to be carried out and the mere fact that the notice was not under that rule does not vitiate the proceedings.'
Fakhrul Islam v. Bhubaneshwari Kuer, A. I. R. (16) 1929 Pat. 19 deals with a case in which the sale held after notice under Order 21, Rule 22 was set aside. No further notice under Order 21, Rule 22 was issued but after fresh sale proclamation the property was again sold. It was held that there was no necessity for taking out fresh notice under Order 21, Rule 22 and the sale was not without jurisdiction although it was without service of notice. It was observed that:
'' . . . the question as to whether the notice was dispensed with under Sub-rule 2 does not arise in the present case, because a notice had actually been issued and although not served, yet the judgment-debtors had notice of the execution and appeared in Court.'
Again in Chandranath v. Nabadwip Ghandra : AIR1931Cal476 Eankin C. J. with whom Ghose J. agreed observed thus:
'Dealing with that kind of objection, the learned Judge Kulwant Sahay J. said: ''All that Order 21, Rule 22 requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. In my judgment, that is the substance and the meaning of the requirement. I do not in any way seek to throw doubt upon the proposition that where such a notice has not issued and the party who is entitled to notice does not in substance get notice and is not given or does not take an opportunity to object to the execution of the decree, the sale which follows will be without jurisdiction in the sense that, even if the sale is to a stranger, the sale will not be binding or valid. The parties in the present case have been litigating actively with each other upon the question whether this execution should proceed and how it should proceed. I have pointed out that, at one stage of the case, the matter was by agreement referred to a gentleman to report as to the amount of the valuation to be inserted in the proclamation of sale. In-the appeal which came previously before this Court, there was an affirmation that the sale was to take place and the proclamation was to issue: 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 last two years. I decline to push the doctrine so far as that and it seems to me that the execution should proceed.'
Then again in Ladli Pershad v. Chaman Lal, A. I. R. (26) 1939 Lah. 473 it was observed that:
''Where notice of the execution proceedings and sale thereunder was issued under Order 21, Rule 66 and the judgment-debtor appeared and contested these proceedings, it is unnecessary to give the judgment-debtor notice of proceedings that he was already well aware of and failure to give notice under Order 21, Rule 22 and the omission to record reasons dispensing with this notice is no more than an irregularity which does not take away the jurisdiction of the Court.'
5. It will thus be seen that it is not open to the respondent in this case to take objection that he was not served with the notice under Order 21, Rule 22, C. P. C. after having failed to take such objection when he was served with other notices in the execution case.
6. In the result this appeal is allowed, the order of the learned Subordinate Judge is set aside and that of the learned Munsiff restored. The parties will bear their own costs.