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Sarju Ram Sahu Vs. Kamal Kishore Agarwala and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1949All528
AppellantSarju Ram Sahu
RespondentKamal Kishore Agarwala and ors.
Excerpt:
- - 85-14-0 in respect of the notice published under section 11 of the act, and he was required to make good the deficiency. she was, however, required to make good the deficiency in the publication charges and the case was adjourned from time to time to enable her to make good the deficiency; but she failed to do so and when she expressed her inability to pay the amount, the application under the encumbered estates act was dismissed for default in prosecution, on 6th december 1938. after the dismissal of the application, sarju ram sahu filed an application for execution of his decree in suit no. 75 of 1939, and it was contended on her behalf that as her name was never brought on the record, she was not bound to make good the deficiency in the publication charges; the learned judge,.....bhargava, j.1. sarju ram sahu has filed this appeal against an order, dated 20th may 1943, passed by the additional civil judge of gorakhpur, setting aside a sale, which was held on 22nd may 1942, in execution of his decree against jugal kishore and ors. staying the execution proceedings under section 7 (1), u.p. encumbered estates act and directing that the same be consigned to the records. jugal kishore is dead. dularna bibi (respondent 8) is the widow, kamal kishore and nawal kishore (respondents 1 and 4) are the sons, and subodh chandra and krishna kishore (respondents 2 and 5) are the grandsons of jugal kishore.2. on 31st august 1915, jugal kishore and nawal kishore executed a sale deed in favour of sarju ram sahu in respect of certain property for a consideration of rs. 15,000. the.....
Judgment:

Bhargava, J.

1. Sarju Ram Sahu has filed this appeal against an order, dated 20th May 1943, passed by the Additional Civil Judge of Gorakhpur, setting aside a sale, which was held on 22nd May 1942, in execution of his decree against Jugal Kishore and Ors. staying the execution proceedings under Section 7 (1), U.P. Encumbered Estates Act and directing that the same be consigned to the records. Jugal Kishore is dead. Dularna Bibi (respondent 8) is the widow, Kamal Kishore and Nawal Kishore (respondents 1 and 4) are the sons, and Subodh Chandra and Krishna Kishore (respondents 2 and 5) are the grandsons of Jugal Kishore.

2. On 31st August 1915, Jugal Kishore and Nawal Kishore executed a sale deed in favour of Sarju Ram Sahu in respect of certain property for a consideration of Rs. 15,000. The sale was set aside at the instance of the sons of the vendors. Sarju Ram Sahu thereupon instituted Suit No. 155 of 1926 against the vendors to recover the amount of sale consideration. On 22nd February 1927, the suit was decreed for Rupees 14,959 and costs. Jugul Kishore and Nawal Kishore filed First Appeal No. 267 of 1928 against the decree, but it was dismissed on 31st May 1982. During the pendency of the appeal an application for stay of execution was made and it was granted on the appellants' furnishing security. Jugul Kishore executed two security bonds, one on 12th July 1928, and the other on 1st September 1928, for an aggregate amount of Rs. 19,000.

3. Sarju Ram Sahu then applied for execution of his decree by sale of the property hypothecated under the security-bonds. Objections were filed that the property could not be sold in execution of the decree. Sarju Ram Sahu had to file a regular suit, no. 94 of 1982, to enforce the security bonds. The suit was contested by Jugul Kishore and his sons on various grounds. It was, however, decreed and a preliminary decree for sale was passed on 30th May 1934. The decree was made absolute on 13th October 1935. An application was made for the execution of this decree.

4. On 20th October 1936, Jugul Kishore put in an application under Section 4, Encumbered Estates Act; and it was in due course forwarded to the Special Judge. On 16th July 1936, the execution proceedings were stayed under Section 7, Encumbered Estates Act.

5. In the case under the Encumbered Estates Act the notices under Sections 9 and 11 of the Act were published in the official gazette. Jugul Kishore paid the charges for publication of notices in the Gazette, but there was a deficiency of Rs. 85-14-0 in respect of the notice published under Section 11 of the Act, and he was required to make good the deficiency. He, however, died on 29th March 1938, before the deficiency could be made up. On 25th April 1938, his widow, Dularna Bibi, applied for substitution of her name in place of her husband; but it appears that the Court did not make any order on her application. She was, however, required to make good the deficiency in the publication charges and the case was adjourned from time to time to enable her to make good the deficiency; but she failed to do so and when she expressed her inability to pay the amount, the application under the Encumbered Estates Act was dismissed for default in prosecution, on 6th December 1938. After the dismissal of the application, Sarju Ram Sahu filed an application for execution of his decree in suit no. 94 of 1932 on 13th May 1940; that is the application which has now been ordered to be consigned to the records.

6. Dularna Bibi filed an appeal in this Court, First Appeal from order No. 75 of 1939, and it was contended on her behalf that as her name was never brought on the record, she was not bound to make good the deficiency in the publication charges; but this contention was overruled. The learned Judge, who heard the appeal, held that in view of the provisions of Section 50 of the Act the Court had to continue the proceedings as if Jugul Kishore was alive, and that even if he had failed to pay up the deficiency in the publication charges the application filed by him could have been dismissed. In the result the order dismissing Jugul Kishore's application for default in prosecution was upheld and the appeal was dismissed on 8th May 1941.

7. An appeal under the Letters Patent was filed against the order, dated 8th May 1911, and it was dismissed on 11th December 1941, in these words:

We are satisfied that the judgment of the learned Judge of this Court is perfectly correct. The appeal is dismissed.

The order, dated 6th December 1938, dismissing Jugul Kishore's application under the Encumbered Estates Act thus became final between the parties.

8. The execution proceedings which had been stayed pending the disposal of the appeal were revived. When execution proceedings were started, Dularna Bibi filed an objection under Section 47, Civil P.C., on 18th August 1941. The objection filed by her was dismissed. The matter was again taken to this Court in appeal (Exn. First Appeal no. 33 of 1942); but that was also dismissed. An application for leave to appeal to His Majesty in Council was then filed; but it was also rejected.

9. When the execution proceedings were started again, various objections were raised, but they were overruled; and eventually the sale took place on 22nd May 1942. On 3rd July 1942 several objections were filed challenging the validity of the sale. All the objections except the one (Misc. Case no. 11 of 1942) filed by Kamal Kishore and Subodh Chandra, under Order 21 Rule 90, and Sections 47 and 151, Civil P.C., were disposed of.

10. In the objection filed by Kamal Kishore and Subodh Chandra, it was pointed out that there was material irregularity in publishing and conducting the sale, and it had caused substantial injury to the judgment-debtors that the decree-holder committed fraud by showing prior encumbrances which, in fact, did not exist and gave grossly inadequate value of the different items of property and in the sale proclamation it was shown that three houses were to be sold in one lot and two bungalows in the other lot and thereby the intending purchasers were misled; and that the decree could not be executed as Jugal Kishore's application under the Encumbered Estates Act had not been dismissed under Section 8 (3) of the Act and the proceedings started thereunder had not been quashed under Section 20 of the Act.

11. It appears that on 28th October 1936, an application under Section 4, Encumbered Estates Act, was filed by Nawal Kishore and Mangleshswari Devi as guardian of her minor sons, Krishna Kishore and Ram Kishore, and that application had been rejected by the Collector on 13th March 1937. On 2nd February 1943, Krishna Kishore applied for the restoration of the said application; and on 23rd February 1943, Mr. E. de. V. Moss, the Collector of Gorakhpur, made the following order:

Explanation accepted. Restored, and application to go to Special Judge under Section 6 E.E. Act.

The application, dated 28th October 1936, contained several 'legal defects' which had not been removed. Consequently, the application was never forwarded to the Special Judge. On 5th March 1943, a creditor filed an objection before Mr. Moss challenging the validity of his order, dated 23rd February 1943, restoring the application, dated 28th October 1936, made by Nawal Kishore and Ors. and passing an order under Section 6, Encumbered Estates Act. Mr. Moss-fixed 26th March 1943, for disposal of the objection and on 16th March 1943, he Bent a letter to the District Judge of Gorakhpur giving the facts mentioned above and saying:

As my order, dated 23-2-1943 is liable to revision I suggest that this fact may please be brought to the notice of all Civil Courts under you in case a stay of proceedings has been obtained.

The District Judge forwarded a copy of this letter to the lower Court.

12. Having obtained the order, dated 23rd February 1943, Kamal Kishore filed an application, on 19th March 1943, in the Court below wherein he pointed out that Nawal Kishore and others had filed an application under the Encumbered Estates Act in which an order under Section 6 of the Act had been passed by the Collector and that in view of that order the execution proceedings had become null and viod.

13. In the meantime Mr. Moss was transferred and the objection came up for hearing before his successor, Mr. J. L. C. Stubbs, who disposed of the objection on 15th April 1943. He observed:

In fact, no definite order under Section 6 has been passed. In view of the fact that I do not consider all the facts were before my predecessor when he passed his order (which) is definitely wrong, I allow the application of the creditor and cancel Mr. Moss's order on the application of Krishna Kishore, dated 23rd February 1943. The Special Judge will be informed accordingly.

The execution proceedings were, therefore, never stayed on account of the order passed by Mr. Moss, on 23rd February 1943.

14. While dealing with the objections filed by Kamal Kishore and Subodh Chandra, on 3rd July 1942, and the application of Kamal Kishore, dated 19th March 1943, the learned Civil Judge formulated the following three questions for determination:

(1) Was there any material irregularity in publishing and conducting the sale dated 22-5-42 and did it cause any substantial injury to the judgment-debtor?

(2) What is the effect of the order of Mr. Moss Collector dated 23-2-43?

(3) Could Mr. Stubbs Collector who succeeded Mr. Moss Collector cancel the order of Mr. Moss dated 28-2-43 and is the order of Mr. Stubbs dated 15-4-43 valid?

He disposed of the first question in these words:

I have gone through the record very carefully and I am satisfied that there was material irregularity in conducting and publishing the sale dated 22-5-42. The decree-holder had grossly undervalued the various items of properties and huge encumbrances were shown in the sale proclamation where none existed; hence the judgment-debtor suffered immense loss and the properties must have brought more price if the sale was properly conducted and published. Hence under the circumstances the auction-sale must be set aside; the auction purchasers are to get back the money deposited in Court.

The learned Civil Judge has commended himself by saying that he had 'very carefully' gone through the record; but he does not seem to have looked through it even carefully. He has pointed out that 'huge encumbrances were shown in the sale proclamation where none existed'; but he has himself pointed out that by mistake of his office in the first sale proclamation issued for 22nd May 1912, the encumbrances had been shown, and on the decree-holder's application the Court had issued another sale proclamation in which it was stated in red ink that there were no encumbrances on the property. That sale proclamation was issued well within time. It is rather surprising that the Civil Judge took into consideration the sale proclamations issued for earlier dates while dealing with the question whether there was any material irregularity in publishing and conducting the sale held on 22nd May 1942. The objectors did not produce any evidence in support of their objections; and we find it difficult to understand how, in the absence of any evidence, the learned Judge came to the conclusion that 'the judgment-debtor suffered immense loss and the properties must have brought more price if the sale was properly conducted and published'. The various items of property, no doubt, fetched price higher than the price shown in the sale proclamation; but that by itself was not sufficient to show that the judgment-debtors had suffered 'immense loss' or that the properties must Have fetched a 'higher price'.

15. Mr. Ghatak, counsel for the respondents 4 and 5, in the absence of any evidence, was unable to support the findings at which the lower Court had arrived and suggested that an issue might be remitted to the Court below for determination of the question whether there was any material irregularity in publishing and conducting the sale and whether it had resulted in any loss to the judgment-debtors. That was the first question formulated by the Court below for decision; and there is nothing on the record to show that the objectors or any of them ever tendered any evidence and it was not recorded by the Court. We, therefore, see no reason to grant any further opportunity to the objectors or to give effect to the suggestion made by the learned Counsel.

16. In our opinion, the lower Court was wrong in holding that there was material irregularity in publishing or conducting the sale held on 22nd May 1942, and that it had actually caused any loss to the judgment-debtors.

17. While dealing with the other two questions, the learned Civil Judge proceeded to discuss whether the Special Judge, before whom Jugul Kishore's application was pending, had the power to demand the amount of deficiency in the publication charges and also whether he had the jurisdiction to dismiss the application for non-payment of the said charges. He recorded the following finding:

In my opinion the Special Judge had no power to ask for the payment of Rs. 85-14-0 by the widow of Babu Jagul Kishore and in my opinion the order of dismissal dated 6-12-1938 by the Special Judge B. Kunwar Bahadur was without jurisdiction.

18. We have already seen that the order dismissing the application of Jugul Kishore had become final; and it was binding on Kamal Kishore, Nawal Kishore, Krishna Kishore and Ors. who were parties to the appeal filed by Dularna Bibi and they were entitled to challenge it on any ground. Mr. Shambhu Prasad, counsel for Dularna Bibi and Mr. Pant counsel for Kamal Kishore and his son attempted to impugn the validity of the said order before us; but as already stated, they are bound by it; and it may be noted here that Dularna Bibi did not object to the sale held on 22nd May 1942 on that ground. Her counsel referred to the objection filed on her behalf on 18th August 1941; but that was long before the sale.

19. Although the learned Civil Judge had taken note of the fact that Dularna Bibi's appeal had been dismissed by this Court, yet he entirely overlooked the decision of this Court, while discussing the validity of the order. We find that a copy of the order in the appeal as well as of the order in the Letters Patent appeal are both on the record; and if the learned Judge had really 'gone through the record very carefully' it must be presumed that he deliberately ignored the decision of this Court. It seems to us that the learned Judge was conscious of this fact as his order contains some sort of an apology in the following sentence : 'I had to go into the detail as I have to discuss the validity of the order of Mr. Stubbs dated 15-4 1943.' He was actually trying to get over the decision of this Court, as he was anxious to express the view which he did. The order of Mr. Stubbs had nothing to do with the dismissal of Jugul Kishore's application.

20. The objectors, Kamal Kishore and his son Subodh Chandra, had pointed out that Jugul Kishore's application was not dismissed under Section 8 (3) and the proceedings were not quashed under Section 20, Encumbered Estates Act; but the learned Judge did not consider this point nor did he consider the question whether Kamal Kishore who was party to the appeal filed by Dularna Bibi, or his son could raise that point. He proceeded to decide the question whether the Special Judge could demand the publication charges from the landlord-applicant and whether his application could be dismissed for non-payment of the said charges, although that question had been decided by this Court in clear terms. It was a decision binding on, and it should have been followed by the Civil Judge, and we must express our disapproval of the course adopted by him.

21. We have also considered the view expressed by the learned Civil Judge; and have come to the conclusion that it is not only contrary to the decision of this Court but is also entirely wrong, Under Order 48, Rule 1, Civil P. C:

(1) Every process issued under this Code shall be served at the expense of the party on whose behalf it is issued, unless the Court otherwise directs.

(2) ...

This provision is not inconsistent with any of the provisions contained in the Encumbered Estates Act. On the other hand, there is a provision to the same effect in Rule 13 of the 'Rules and Instructions under the U.P. Encumbered Estates Act, 1934'. A notice issued under Section 11 of the Act is a process within the meaning of the above provision; and it could be issued only at the expense of the party concerned.

22. This is also clear from the entire scheme of the Encumbered Estates Act and the Rules framed thereunder. The party concerned has to pay the charges for publication of notices in the newspapers as well as the postal charges for issuing processes; and in cases where provision has been made for issuing of processes free of charge, the requisite process-fee is to be realised subsequently as a first charge on the estate after the land revenue, under Rule 14 of the said Rules. Under Rule 11 of the same Rules the cost of publication of a notice, under Section 11 of the Act, published in a newspaper is to be paid by the landlord-applicant or by such claimant as the Special Judge may direct. In the Press Act, (XXIII [23] of 1931) 'newspaper' has been defined as 'any periodical work containing public news or comments on public news.' Government orders and notifications are published in the Gazette for the information of the public. The Gazette is registered like any other newspaper under the rules of the Postal Department relating to 'Registered Newspapers' for concessional rate of postage. Therefore, the official Gazette must also be deemed to be a newspaper.

23. The publication of the notice in the official Gazette was made compulsory with the obvious object of enabling the creditors to find all the notices at one place. The Courts located all over the Province were to publish notices in-local newspapers; and it would have been difficult for the creditors like banks and others having extensive money-lending business to subscribe to all the newspapers. The words 'shall publish in the official Gazette' occurring in Section 9, Encumbered Estates Act, do not mean that the Court shall publish the notices free of costs or at its own expense or at the expense of the Government. It would never have been the intention of the Legislature to place any such burden on the Government, who is no party to the proceedings.

24. The fact that Jugul Kishore's application was not dismissed under Section 8 (3), Encumbered Estates Act, or that the proceedings were not quashed under Section 20 of the Act does not lead us to the conclusion that the application could not be dismissed for default in prosecution. Section 8 (3) empowers the Special Judge to dismiss the application in case the written statement is not filed by the landlord-applicant within reasonable time; and under Section 20 the proceedings are to be quashed on the application of the landlord-applicant. The dismissal of an application for default in prosecution is independent of and is not subject to the dismissal under Section 8 (3) and the quashing of proceedings under section 20.

25. The Court below was, therefore, wrong in holding that the Special Judge had no power to demand the publication charges from Dularna Bibi and that the order, dated 6th December 1938, dismissing the application of Jugul Kishore was without jurisdiction. In our opinion, the Court had no jurisdiction to enter into this question; nor was it necessary for the Court to decide the question.

26. The learned Civil Judge answered the second and third questions formulated by him for determination in this way:

On an application, under Section 4, Encumbered Estates Act, filed on 28th October 1936, by Nawal Kishore and Mangleshwari Devi as guardian of her minor sons Krishna Kishore and Ram Kishore, Mr. Moss the Collector of Gorakhpur had made an order, under Section 6 of the Act, on 23rd February 1943 and the said order was not affected in any manner by the order of Mr. Stubbs, which he passed on 15th April 1943 superseding that order.

He further held:

In view of the fact that an order under Section 6, Encumbered Estates Act, has been passed by Mr. Moss on 23rd February 1943 the consequences under Section 7 shall follow i.e., all proceedings shall be stayed, all attachments and other execution processes issued by any such Court shall become null and void and no fresh process in execution shall except as herein provided be issued.

27. The learned Counsel for the appellant has contended that the application under the Encumbered Estates Act which had been dismissed six years before, could not be restored; that there was no valid application under the Act pending on 23rd February 1943, on which an order under Section 6 of the Act could be made; and that there was no such valid or subsisting order, in consequence whereof the execution proceedings could be stayed; consequently the view taken by the Court below was erroneous.

28. We have seen the order, dated 23rd February 1943, passed by Mr. Moss. In view of certain explanation given by the applicant the application was 'restored' and it was 'to go to the Special Judge under Section 6, Encumbered Estates Act.' Had Mr. Moss any jurisdiction to restore the application?

29. The application had been rejected on 13th March 1937 as it had some 'legal defects.' The order dismissing the application had become final. An application for restoration could only be made under the provisions of the Civil Procedure Code and within the time allowed by law. Obviously, it could not be filed after the lapse of six years. In the Encumbered Estates Act there is no provision for the 'restoration' of a defective application, although there is a provision for allowing the landlord-applicant to apply for amendment of such an application, which may be pending, under Section 4(5) of the Act. Therefore, Mr. Moss had no jurisdiction to restore the application in the manner in which he did. It follows that there was no application under the Encumbered Estates Act pending on which the order under Section 6 of the Act could be passed.

30. Even if we assume for the sake of argument that the application could be and was actually restored, it is obvious that there was no valid application. Admittedly, the legal defects in the application were not removed; hence, there was no application which had been duly made according to the provisions of Section 4 of the Act on which the Collector could 'forthwith pass an order that it be forwarded to the Special Judge,' and which could be forwarded to the Special Judge under Section 6 of the Act. The order contemplated by Section 6 should take some such form : An application has been duly made according to the provisions of Section 4, Encumbered Estates Act. Let it be forwarded to the Special Judge. If no such application is put in, no order forwarding it to the Special Judge can be made under Section 6 of the Act.

31. The order dated 23rd February 1943 was in a way superseded by an interim order passed by Mr. Moss himself, and that order was formally confirmed by Mr. Stubbs. The creditor against whom the order was sought to be enforced as an order under Section 6, Encumbered Estates Act, was a person aggrieved by the order and he could apply for its review under Order 47, Rule 1, Civil P.C., and an application was made by him to Mr. Moss with that object. The mistake was apparent on the face of the record. Mr. Moss was evidently satisfied that there was such an error, as he informed the Special Judge, before whom the copy of order might have been filed to obtain stay of proceedings, that the order was 'liable to revision'. He fixed a date for disposal of the application, but in the meantime he was transferred. The application came up for hearing before his successor, Mr. Stubbs, who allowed it and actually set aside the order. The order was obtained by interested persons obviously with the object of delaying and defeating the rights of the decree-holder, as the application on which the order was passed was never forwarded to the Special Judge. The officer who was persuaded to make the order realised his mistake on his attention being drawn to it and in a sense withdrew it pending disposal of the application for review which had been made to him.

32. Learned Counsel for the respondents have strenuously argued that the order passed by Mr. Moss could not be challenged in the civil Court. Even if we accept this argument, it will apply with equal force to the later order passed by Mr. Stubbs and it would not be open to the lower Court to consider the validity of the later order while accepting the earlier order (which was apparently to its liking) as sacrosanct. If, therefore, the civil Court is held to have no jurisdiction in the matter, it is the latest order viz., that of Mr. Stubbs, which should prevail. This appears to us proper also, for, it would be odd that the civil Courts should stay all proceedings and declare all attachments etc., null and void, under Section 7, Encumbered Estates Act, while the Collector has declined to forward the application which was made under Section 4,

33. If, on the other hand, the civil Court has jurisdiction to consider the validity of the two orders, the earlier order of Mr. Moss having been passed, in our view, without jurisdiction, was a nullity. As such there is no necessity for considering the validity of the later order of Mr. Stubbs.

34. In the circumstances of the present case, we have no hesitation in holding that there was no valid or subsisting order, in consequence whereof the execution proceedings could be stayed.

35. Assuming for the sake of argument that there was any valid order under Section 6, Encumbered Estates Act, we are of the opinion that the lower Court was wrong in declaring all attachments and other execution processes issued by the Court as null and void. Learned Counsel for the respondents have tried to support this order of the Court below on the authority of a decision of a learned Judge of this Court in Bulaqi Das v. Gulab Chand : AIR1939All23 . One of the contentions in Bulaqi Das' case : AIR1939All23 was that in the later part of Section 7 (a), Encumbered Estates Act, there was no reference to any proceedings as distinguished from a process and

that a sale held in execution of a decree is not an execution process but a proceeding which could only be stayed under Section 7, Encumbered Estates Act, but does not necessarily become null and void.

While rejecting this contention Mulla J. observed at page 1063:

When an application is wade for execution of a decree, it marks the institution of a proceeding. All the steps taken by the Court and all orders passed by it from time to time in connexion with that application, until the decree is satisfied or the application is dismissed, constitute one proceeding which is generally referred to as an execution proceeding.

We entirely agree with these observations. The learned Judge, however, proceeded to observe:

In my view, the orders passed by the Court from time to time with the object of executing the decree which are carried out by the ministerial officers of the Court are all execution processes within the meaning of Section 7, Encumbered Estates Act.

And with reference to the provisions of Order 21, Rules 24 and 25, Civil P.C., he further observed:

Those two rules clearly indicate what is meant by an execution process, and I think there can be little doubt that an order passed by a Court executing the decree for sale which is carried out by a ministerial officer of the Court amounts to an execution process.

Rule 24 of Order 21 lays down that:

When the preliminary measures (if any) required by the foregoing rules have been taken, the Court shall, unless it Bees cause to the contrary, issue its process for the execution of the decree.

The meaning of the word 'process' is made clear by Clause (2) of the same rule which says:

Every such process shall bear date, the day on which it is issued, and shall be signed by the Judge or such officer as the Court may appoint in this behalf, and shall be sealed with the seal of the Court and delivered to the proper officer to be executed.

The provisions of the rules which follow make it clear that during the pendency of the execution proceedings several processes may be issued in the form prescribed. Under Rule 25 of Order 21, the process issued by the Court is to be entrusted to an officer of the Court who has to return it on or before a specified date with endorsement showing the manner of its execution and, if it is not executed, the reason why it was not executed. The orders passed by the Court from time to time with the object of executing the decree must be distinguished from the processes which are issued in pursuance of those orders. The order for sale, for instance, cannot be regarded as a process in execution, It is an order made under Rule 64 of Order 21 after the conditions mention-ed therein are satisfied. In pursuance of the order the Court has to cause a proclamation of the intended sale to be made; that is a process and then certain other processes have to be issued before the sale proclamation is drawn up. Similarly, the order for confirmation of sale after the sale has taken place cannot be considered a process in execution.

36. Section 7, Encumbered Estates Act, draws a distinction between the 'proceeding pending...in any civil or revenue Court' on the date on which an order under Section 6, Encumbered Estates Act is made and 'attachment and other execution processes issued by any such Court and then in force.' The proceedings start with the institution of an application for execution and they remain pending until the execution case is ordered to be consigned to the records; and during the pendency of the proceedings attachments and other processes are issued. The process for attachment of property remains in force until the attachment is made or it is return ed unexecuted as provided in Rule 25 of Order 21, Civil P.C. Same is the case with other processes. The process for sale of the property attached remains in force until the sale is knocked down or it is returned unexecuted. If any process is returned unexecuted, a fresh process has to be issued. If the sale does not take place or if it takes place and it is set aside, another process has to be issued, the one issued previously having ceased to be in force. If a valid sale takes place in pursuance of the process issued for the purpose the Court has only to pass an order confirming the sale and that would be independently of the process for sale, although it is the ultimate result of the processes issued and the proceedings taken in execution. Under Section 7 (1) only such attachments and other processes in execution can become null and void which are still in force.) Therefore, even if any order under Section 6, Encumbered Estates Act was passed on 23rd February 1943, the sale which had already taken place on 22nd May 1942 could not be affected thereby. Only the confirmation of sale could be stayed because what the Court executing the decree had to do after the sale and before the order of confirmation thereof were proceedings in execution. The attachments and other execution processes which had already been executed and were no longer in force could not be quashed or declared null and void.

37. In the objection filed by Kamal Kishore and his son, Subodh Chandra, there was one more point viz., that Subodh Chandra was no party to the decree and his own share in the property could not be sold. This point does not seem to have been pressed in the Court below nor was it raised before us. We have, however, considered it, and find no force in it. No such objection was raised on behalf of Subodh Chandra at any stage of the execution proceedings and Subodh Chandra was throughout represented by his father Kamal Kishore; consequently he is bound by the decree as well as subsequent proceedings in execution thereof.

38. We are, therefore, satisfied that the order, dated 20th May 1943, passed by the Additional Civil Judge is wrong and it must be set aside and that the objections filed by Kamal Kishore ' and Subodh Chandra ought to have been dismissed.

39. Accordingly we allow this appeal, set aside the order under appeal, dismiss the objections filed by Kamal Kishore and Subodh Chandra and confirm the sale held on 22nd May 1942. The appellant will get his costs of this appeal as well as of the proceedings in the Court below from respondents 1 to 5 who will bear their own costs.


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