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Mobarak Ali Vs. Dinabandhu Sahu and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberM.A. Nos. 92 and 93 of 1948
Judge
Reported inAIR1953Ori296; 19(1953)CLT484
ActsCode of Civil Procedure (CPC) , 1908 - Order 21, Rule 22, 22(3) and 22A; Patna Code of Civil Procedure (CPC) (Amendment) Act
AppellantMobarak Ali
RespondentDinabandhu Sahu and ors.
Appellant AdvocateM.S. Rao, Adv.
Respondent AdvocateL. Mohanti and ;U.N. Rath, Advs.
DispositionAppeals allowed
Cases ReferredMohan v. Secy
Excerpt:
.....be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and the date of sale, notwithstanding the failure to substitute his legal representative in his place, but in case of such failure the court may set aside the sale if satisfied that the legal representative of the judgment-debtor has been prejudiced thereby. ' the present case is clearly distinguishable from the patna case on account of the reason, as we see, that after there was a default in the payment of the instalment ordered by the court, the decree-holder put an application, in court, even though it was not a fresh application under order 21, rule 11, to proceed with execution and for sale of the properties. that they were very much impressed with the feature that..........be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and the date of sale, notwithstanding the failure to substitute his legal representative in his place, but in case of such failure the court may set aside the sale if satisfied that the legal representative of the judgment-debtor has been prejudiced thereby.' 'in our view, in the face of this amendment, which came into force on 14-5-1947, non-issue of notice under order 21, rule 22 does not invalidate the sale on account of the amendment of order 21, rule 22, sub-rule (3) in the case of the objection filed by the purchasers or judgment-debtors and on account of the amendment of rule 22a in the case of the objection put forth by the alleged adopted son of deceased.....
Judgment:

Mohapatra, J.

1. These two miscellaneous appeals arise out of execution proceedings in execution of a decree obtained by the Cuttack Bank Limited against Kashinath Das and others for a sum of Rs. 5,000/- and odd, the decree being dated 27-7-1939. In Misc. Case NO. 116 of 1947, out of which M. A. 93 of 48 arises, Rabindranath Das, alleging to be the adopted son of Golak Chandra Das, deceased and Judgment-debtor No. 6 Gourang Gharan Das filed an objection under Section 47, Civil P. C., that the sale which took plaoe on 5-5-1947,was void against the interest of the deceased Golak Chandra Das, who died on 15-11-1946. In Misc.

Cases Nos. 137 and 138 of 47 out of which M. A. 92of 43 arises, purchasers of the portions of the mortgaged property on 8-3-1941, made an appli-cation under Section 47, C. P. C., and also under Order 21, Rule 90, C. P. C., alleging the sale to be voidand also with a prayer for setting aside the sale on the allegation that in the execution proceedings on the application of the judgment-debtors under the provisions of the Orissa Money-Lenders Act, an order was passed on 15-1-1943, allowing the judgment-debtors to pay on instalment, but the same execution proceeding was allowed to be proceeded with and the sale took place in the same execution proceeding without fresh service of notice under Order 21, Rule 22, C. P. C., and as such, the sale is void. They have also made (application?) to bring the case under Order 21, Rule 90, C. P. C. On the petition of Rabindranath Das, the learned Court below found that Rabindranath happened to be the adopted son of Golak, and relying upon the decision of the Patna High Court, reported in --'Ajab Lal Dube v. Haricharan', AIR 1945 Pat 1 (A), he held the sale as void against the interest of the deceased judgment-debtor Golak Chandra, inasmuch as a fresh notice under Order 21, Rule 22 had not been issued. On the petition of the purchasers, the Court below, relying upon the decision of the Patna High Court reported in the same volume, that is, -- 'Rampal Singh v. Uditnarain Panda', AIR 1945 Pat 76 (B), held that after there was a default in the payment of the instalment, the decree-holder ought to have started a fresh execution case and he not having taken a fresh notice tinder Order 21, Rule 22, the sale must be declared as void. But regarding the petition under Order 21, Rule 90 the Court below rejected it inasmuch as it was filed long after the period prescribed for limitation, it is very unfortunate that the learned Court below has missed the new amendment of the Patna High Court of Order 21, Rules 22, and 22-A dated 14-5-1947. The amendment runs as follows :

'Add es Sub-rule (3) the following

(3) Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under Sub-rule (1) or to record reasons where such notice is dispensed with under Sub-rule (2) unless the judgment-debtor has sustained substantial injury thereby'.

Add as r. 22-A the following :

'22A. Where any property is sold in execution of a decree, the sale shall not be set aside by reason only of the death of the judgment-debtor between the date of issue of the sale proclamation and the date of sale, notwithstanding the failure to substitute his legal representative in his place, but in case of such failure the Court may set aside the sale if satisfied that the legal representative of the judgment-debtor has been prejudiced thereby.' '

In our view, in the face of this amendment, which came into force on 14-5-1947, non-issue of notice under Order 21, Rule 22 does not invalidate the sale on account of the amendment of Order 21, Rule 22, Sub-rule (3) in the case of the objection filed by the purchasers or judgment-debtors and on account of the amendment of Rule 22A in the case of the objection put forth by the alleged adopted son of deceased Golakchandra.

2. Mr. Mohanty, appearing on behalf of the judgment-debtors in both the cases, urges that on account of the passing of the instalment order on 15-1-1943, a new decree was passed in the eye of law and the previous execution proceeding must be deemed to have terminated and in the absence of a fresh execution petition under Order 21, Rule 11, the present sale held in the previous execution case is to be declared as void. He strongly relies upon the above quoted decision reported in -- 'AIR 1945 Pat 76 (B)'. He relies upon the observation of Dhavie, J. which runs to tne effect :

'That once the order for instalments came into force, the execution that was proceeding under the original decree became ineffective and the right of the decree-Holder to execute would arise on the occurrence of each default, and on such default it would be necessary for the decree-holder to apply to the Court for execution for the amount outstanding at the time so as to give the Court jurisdiction to proceed in the matter. Therefore the Court had no jurisdiction to sell the property on the 6th December as it did without any application made by the decree-holder on the basis of the default of the judgment-debtor without a fresh sale proclamation and other formalities of an execution sale.'

The present case is clearly distinguishable from the Patna case on account of the reason, as we see, that after there was a default in the payment of the instalment ordered by the Court, the decree-holder put an application, in Court, even though it was not a fresh application under Order 21, Rule 11, to proceed with execution and for sale of the properties. He prayed for issue of the sale proclamation and accordingly the sale proclamation was issued and served. In the Patna case, however, there was no fresh sale proclamation issued or served after there was a default in the payment of the instalment. To our mind, this absence of a sale proclamation weighed very much with the learned Judge in coming to the conclusion that sale held therein was invalid and without jurisdiction. This decision certainly cannot be construed to mean that simply because an order for instalment was made, it was really a new decree substituted in the place of the old one. The position is absolutely clear that by virtue of an order having been passed under the provisions of the Orissa Money -Lenders Act during the course of the execution the original decree passed by the Trial Court is not substituted by fresh decree. The decree-holder simply gets a fresh right to execute the same old decree on account of the default. Their Lordships in that case do not lay down as a principle that after the default in thel payment of the instalment a fresh application under Order 21, Rule 11 with all the requisites has got to be filed. That they were very much impressed with the feature that there was no fresh sale proclamation issued or served is made clear from the following observations running to the effect : 'The execution case could not remain pending after this in the sense of entitling the decree-holder or the Court to proceed with the sale without a fresh sale proclamation'. In the present case, as we have stated above, the decree-holder having made an application for proceeding on with the execution which was pending till then and there having been served a fresh sale proclamation the sale held in execution of the decree is perfectly valid.

3. The other point taken up by Mr. Mahanty is that the sale having taken place on 5-5-1947, and the amendment having come into force on 14-5-1947, the sale, which was void on account of non-issue of notice under Order 21, Rule 22 on the legal representative of deceased Golak Chandra in accordance with the provisions of Order 21, Rule 22 (then in force at the time of the sale), cannot be validated by the introduction of the new amendment which is not retrospective. This is one of the common rules of interpretation of statutes that procedural laws are retrospective unless there is contrary intention in the Act itself. No person can have a vested right in a course of procedure and it is an elementary principle that the plaintiff or the defendant has the right to prosecute or defend in the manner prescribed for the time being by or in the Court he sues and if there is an Act which alters the mode of procedure he has no other right than to proceed with the old law. It is to be mentioned here that this petition for setting aside the sale has been filed much after the amendment came into force. Furthermore, on a perusal of the language of the new provision under Order 21, Rule 22A, we are satisfied that it means to apply to sales having taken place prior to the coming into force of the new amendment also. We will, in this connexion, refer to a decision of the Patna High Court reported in -- 'Balmakund v. Firm Pirthiraj Ganesh Das', AIR 1951 Pat 333 (C). The judgment was delivered by Narayan J. On this particular point, however, Imam J. did not like to express any definite opinion, but nevertheless we agree with the reasons given in the judgment of Narayan J. who comes to the conclusion that the provisions of the new amendment are retrospective. He observes that in enacting Sub-rule (3) the Legislature contemplated to explain their intention with regard to the provisions contained in Order 21, Rule 22, which had been the subject matter of interpretation in various cases decided by the High Courts and also by the Judicial Committee. He relies upon the previous decision of the same High Court reported in -- 'Sou-rendra Mohan v. Secy, of State', AIR 1934 Pat 701 (D), for the proposition :

'It is a well settled principle of law that the legislature must be taken to be aware of the interpretation of the statute enacted by them by the Courts; and if they find that the interpretations by Courts of Justice are not in conformity with their intention they should amend it to bring it in conformity with their intention.'

4. On a consideration of these reasons, therefore, we find that the provisions of the new amendment of Order 21, Rules 22 and 22A will apply to the sale held in the present case. We will further observe that Mr. Mahanty has not been able to 'satisfy us that he has suffered any sustantial injury on account of non-issue of notice under Order 21, Rule 22. His only suggestion was regarding the valuation of the suit properties; but it has been found by the lower Court that on account of the legislative measures taken by the Government for abolition of zamindaries, the suit property, which is a Tousi, cannot fetch better value than it has fetched by virtue of the present sale.

5. In this view of the matter, therefore, we allow both the appeals, set aside the Judgment of the Executing Court and confirm sale. The ap-pellants, will be entitled to costs throughout.

Panigrahi, C.J.

6. I agree.


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