1. This appeal is against an order refusing to set aside a sale in execution of a money-decree against the appellant, first defendant, and other, members of his family.
2. The lower Court was asked to set aside the sale on several grounds. Only one argument has been attempted here, that the sale is bad for want of notice to appellant as required by Order XXI, Rule 22, Civil Procedure Code. The necessary facts are that a decree, passed on 8th August 1912 by the Chief Court of Lower Burma, was transmitted to Ramnad District Court in May 1914 and thence to Ramnad Sub-Court. It was returned to Ramnad District Court, the application for execution there was treated as for transfer to the lower Court, Sivagunga Sub-Court; and the decree and execution petition by a possibly lax procedure, to which however no objection is taken at present, were transferred accordingly. In the lower Court the present proceedings followed. It is admitted by the respondent that there was no notice of the proceedings in the Lower Burma Chief Court and no notice of other proceedings has been proved. The question is, whether this renders them, and in particular the latest proceedings in the lower Court, invalid. Is there an illegality established or merely an irregularity? In the latter event the appeal must fail, because the lower Court has found in its judgment, paragraph 27, that the price realised was not inadequate and that finding against substantial, loss to the appellant has not been attacked.
3. An attempt has been made to argue that absence of notice can be justified with reference to Rule 22, Clause (1), proviso, because rateable distribution was once allowed in the Ramnad Sub-Court by an order adverse to the appellant on 20th February 1916 and although that order was set aside by the High Court rateable distribution was again allowed by the Coimbatore District Court on 16th January 1917. But these adverse orders are not within one year of the present application for execution contemplated by the proviso. For the present application Execution Petition Revision No. 1100 of 1918 was presented on 12th November 1918. It was for sale after a previous application for sale had been inoperative owing to the respondent s failure to produce an encumbrance certificate and had been dismissed, the attachment being maintained. Much less are these orders within the one year, if on the view most favourable to the respondent, the date of presentation of the original application for execution in the Ramnad District Court is taken as 9th April 1918.
4. Next, it is suggested that the appellant's objection to the absence of notice must be regarded as waived by him, because he was served with notice of the settlement of sale-proclamation in the present proceedings and did not appear and take objection to the validity of those proceedings up to that stage. We agree with the finding that there was a service in accordance with Order V, Rule 17 on the appellant since the evidence is clear that there was affixture during his temporary absence on his house where his wife was living and we agree that this was rightly declared sufficient. It may, however, be doubtful whether the argument based on waiver can be sustained if illegality affecting the jurisdiction of the Court, and not irregularity, is in question. We, therefore, have to decide between the two, which of them is established. That is the substantial issue before us.
5. The answer proposed by the respondent is, that illegality is not established in view of Sub-section 2 of Rule 22, the contention being that sub-section is applicable nonetheless because the Court did not record its reasons for dispensing with the issue of notice, the provision for such record being directory, not mandatory.
6. The appellant relies on authorities that notice is essential. Some of these the respondent distinguishes on the ground that they relate to cases in which notice is necessary, not because of the lapse of one year since the passing of the decree and the last application for execution but because devolution of interest has occurred. That distinction, however, is negatived by the absence of anything in the rule to support it, the same language being used as applicable to both classes of cases. The real ground of distinction to be drawn seems to us to be between the cases under the, former Code and finder this, there being nothing in the former Code corresponding with Sub-section 2 now under consideration. The cases accordingly under the former Code, to which we have been referred Gopal Chunder Chatterjee v. Gunamoni 2 C. 370 ; Gurudas Biswas v. Thakamani Dasi 64 Ind. Cas. 476 and Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. 304 must be dismissed from consideration. In the cases decided under the present Code in Syam Mandal v. Sati Nath Banerjee 38 Ind. Cas. 493 ; Ram Kinkar v. Sthiti Ram 46 Ind Cas. 221 no mention was made of the Sub-section (2) and in Srinivasa Aiyangar v. Narayana Aiyangar 40 Ind. Cas. 670 although it was mentioned, there was no full discussion of its implications. On the other hand Blanchenay v. Burt (1843) 4 Q.B. 707 relied on by the respondent deals with English Procedure in 1843 and is not of assistance. In Mahomed Mera Rowther v. Kadir Mera Rowther (1914) M.W.N. 63 the Court at least doubted whether omission of the notice would be more than an irregularity with reference to subsection.
7. Turning to principle, it is good reason for holding that no illegality is in question when once, even conditionally, the issue of notice is made by Sub-section (2) discretionary. Notice may under Sub-section (2) be omitted at the discretion of the Court. It may further be pointed out with reference to the application of the sub-section for failure to record reasons, that such application is consistent only with the directory character of the provision, since it imposes a duty on the Court which the party interested in its performance has no means of enforcing and as to the performance of which he has indeed no means at the time of satisfying himself. We have been referred to other cases in the Indian authorities, m which the Court is required to record, its reasons before using its powers In Gopal Singh v. Jhakri Rai 12 C. 37 its obligation to do so before admitting evidence in appeal and in Kamal Rutty v. Udayavarma Raja Valia Raja of Chirakal 17 Ind. Cas. 65 a similar obligation before passing a preliminary order under Section 145, Criminal Procedure, Code, are considered. In both these cases it was field that the omission to record reasons did not deprive the Court of jurisdiction, the provision of law being merely directory. In Kanchan Mandar v. Kamala Prosad 29 Ind. Cas. 734 the direction to record reasons before granting a review and in Yacoob v. Adamson 13 C. 272 the duty of the Presidency Magistrate to give reasons before convicting are dealt with. In these two cases it was held that the omission invalidate the Proceedings; but the language used indicates that if the matter had been considered on its merits and if the superior Court had been able to satisfy itself of the propriety of the lower Court's action, the conclusion would have been different. In those circumstances, we hold that the provision in Sub-section (2) requiring the Court to record its reasons is only discretionary and that the failure to issue a notice in the present case was not necessarily fatal to the validity of the proceedings. It would, of course, ordinarily be open to the appellant to ask us to consider the Courts use of its discretion en its merits. But, firstly, there is, as already observed, the finding of the lower Court that no substantial loss resulted against which nothing has been said; secondly, it is not difficult, with reference to the facts mentioned in paragraph 24 of the lower Court's judgment, to infer the reasons on which it acted.
8. The result is that the appeal fails and is dismissed with costs.