1. This appeal is by the decree holder. It arises in connexion with the execution of an award made by an arbitrator appointed under rules made by the Local Government under the provisions of the Cooperative Credit Societies Act. A certain property belonging to the judgment-debtor was sold. He filed an objection under Section 47, Civil P.C. on the ground that the sale was a nullity. It was dismissed by the Munsif. On appeal the sale has been set aside by the Subordinate Judge.
2. The sale was held in violation of the terms of Sections 33 and 34, Bengal Agricultural Debtors Act. The practical question argued before me is the proper procedure which ought to be followed by the judgment, debtor if he desires to have it set aside, or, if it does not require to be set aside, to obtain a declaration that his interest has not been affected by it.
3. To understand the arguments made the following facts must be stated. The execution petition was filed while the judgment-debtor's application was pending before the Debt Settlement Board. On the day fixed for holding the sale a notice under Section 34 was received from the Board. The Munsif made an Order postponing further proceedings sine die. The decree-holder then filed an application for review. The whole of the present difficulty is due to the fact that the Munsif allowed it offhand without properly considering the questions involved and without giving any notice to the judgment-debtor. As a result, the sale was held behind the back of the judgment debtor in circumstances in which the only bidder who could be expected to be present was the decree-holder. 'When the judgment debtor came to know of the sale it was too late for him to apply to have it set aside in view of the provisions of Article 166, Limitation Act, and he could only succeed by showing that it was a nullity. The decree-holder, however, has not sought to take advantage of this defect, in the actual Order made by the learned Subordinate Judge. But there can be no question that the judgment-debtor was in a serious position when he discovered that his property had been sold in this illegal way.
4. Two contentions were put forward in support of his case that the sale was a nullity (1) that, inasmuch as no notice was given of the review application, the Order allowing it and all subsequent proceedings were null and void and (2) that the sale was void inasmuch as it was held in contravention of the provisions of Section 33 and Section 34, Bengal Agricultural Debtors Act.
5. On the former point the decisions are conflicting. But I am satisfied that the weight of authority is to the effect that the sale cannot be held to be a nullity on that account.
6. On the second point I do not think that it can be seriously contended that a sale held in contravention of the provisions of Sections 33 and 34, Bengal Agricultural Debtors Act, is not a nullity. It is a stronger case than a sale held without issuing the notice prescribed under C. 21, Rule 22, Civil P.C. and, until the recent amendment of the rule, such a sale was held to be a nullity. I have myself no doubt that the sale held in the present case was a nullity.
7. It has, therefore, become necessary to consider what procedure ought to be adopted by the judgment-debtor in Order to get rid of it. It frequently happens that no notice under Section 34 is issued at all. In the present case, if the notice had arrived a day later, the judgment-debtor could only have succeeded by showing that the sale was held in violation of the provisions of Section 33. The only way open to him would have been to file an objection under Section 47 as he has actually done in the present case. The question for consideration is whether the fact that the notice under Section 34 was received makes any difference. I must confess that I should have found no difficulty in dismissing the appeal if it had not been for the recent decisions in Mohammad Ibrahim v. Saburjan Bewa : AIR1943Cal624 . and Abinash Chandra Biswas v. Nakul Ruhidas ('43) 47 C. W. N. 891. upon which Mr. De relies. When those decisions are studied it seems to me to be quite clear that they really proceed upon the principle of resjudicata, they are both concerned with the effect of a determination by the Court to ignore the notice and proceed with the execution case. It seems perfectly reasonable to say that, when the judgment-debtor does not appeal against this decision, he cannot be allowed to reagitate the matter by attacking the sale after it has taken place.
8. The reason given in the decision is that the proper remedy is by appeal or revision. That implies that there is some Order against which an appeal could be made. In the present case the Munsif held that the notice was binding upon him and that no further proceedings could be taken as long as the notice remained in force. This was a decision in favour of the judgment-debtor. There was no reason why he should appeal against it. It was for the decree-holder to appeal and as he did not do so, he should not be allowed to contend in any subsequent execution proceeding that the sale was held with jurisdiction. There remains the Order allowing the decree-holder's application for review. The petitioner could undoubtedly have appealed against it. But the only question for decision in that appeal would have been whether notice of the application had been given. The question whether the sale was void would not have arisen for consideration at all. The result is that, in my opinion, there is nothing to prevent the judgment-debtor from obtaining relief by his application under Section 47. The appeal is dismissed. I make no Order as to costs.