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Sarifa Khatun Widow of Muslim Bafta Vs. Asimannessa Bibi W/O Aminaddi Ahamed and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Reported inAIR1938Cal734
AppellantSarifa Khatun Widow of Muslim Bafta
RespondentAsimannessa Bibi W/O Aminaddi Ahamed and ors.
Cases Referred and Nawab Zaimulabdin Khan v. Muhammad Asghar Ali Khan
Excerpt:
- .....as by his wife and son on 25th may 1933. on 21st july following the wife and the son who were co-decree-holders of mazubali assigned their interest in the decree to mazubali together with their landlord's interest in the holding. the decree was put into execution on 17th november 1933 and on 9th july 1934 the holding in arrears was put up to sale and purchased by one asimannessa bibi, one of the respondents before me. on 8th september 1936 proceedings were commenced by the present appellant, who was one of the judgment-debtors for setting aside the sale under the provisions of section 47 and order 21, rule 90, civil p.c. various allegations were made impeaching the regularity of the sale by the executing court. it was held by the court that there was no notice served on the assignors.....
Judgment:

B.K. Mukherjea, J.

1. This is an appeal on behalf of one of the judgment-debtors and is directed against an order of remand passed by the District Judge of Bakergunj in Miscellaneous Appeal No. 120 of 1937. The facts so far as they are material for purposes of this appeal stand as follows: A rent decree was obtained by Mazubali Chaudhury as well as by his wife and son on 25th May 1933. On 21st July following the wife and the son who were co-decree-holders of Mazubali assigned their interest in the decree to Mazubali together with their landlord's interest in the holding. The decree was put into execution on 17th November 1933 and on 9th July 1934 the holding in arrears was put up to sale and purchased by one Asimannessa Bibi, one of the respondents before me. On 8th September 1936 proceedings were commenced by the present appellant, who was one of the judgment-debtors for setting aside the sale under the provisions of Section 47 and Order 21, Rule 90, Civil P.C. Various allegations were made impeaching the regularity of the sale by the executing Court. It was held by the Court that there was no notice served on the assignors and the judgment-debtors under the provisions of Order 21, Rule 16, Civil P.C., and consequently the sale was a nullity out and out. On this view of the case the judgment-debtor's application was allowed and the sale was set aside on condition of paying the decretal dues. Against this order an appeal was taken to the Court of the District Judge of Bakergunj. The learned District Judge agreed with the trial Court in the view that the sale was a nullity by reason of non-service of notice under Order 21, Rule 16, Civil P.C. Nevertheless he sent the case back to the trial Court on remand as he was of opinion that the decree-holder had not a fair and full hearing in the trial Court and that notices had not been served upon the other judgment-debtors prior to the hearing of the application for setting aside the sale. It is against this decision that the present second appeal has been preferred.

2. Mr. Guha for the appellant contended before me that after having come to the conclusion that the sale was void it was not competent to the lower Appellate Court to set aside the judgment of the trial Court and sent back the case for a fresh hearing. Mr. Gupta who appears for the respondents has conceded that if the decision of the lower Appellate Court as regards the nullity of the sale stands, the order of remand was certainly not necessary or proper. He attempted however to support the judgment of the lower Appellate Court on the ground that the sale was not a nullity and consequently the petition of the judgment-debtor under Section 174, Ben. Ten. Act, should be heard and decided. The point for my determination is whether non-service of notice under Order 21, Rule 90, Civil P.C., makes the sale void ab initio. Now Order 21, Rule 16 provides inter alia that where a decree or, if a decree has been passed jointly in favour of two or more persons, the interest of the decree-holder in the decree is transferred by assignment, the notice of the application for execution of the decree shall be given to the transferor and the judgment-debtor and the decree shall not be executed until the Court has heard the objection as to its execution. It seems tome that the service of notice as contemplated by this Rule both upon the transferors and the judgment-debtors is a condition precedent to the execution of the decree and the law is perfectly clear when it says that the decree shall not be executed unless it has heard the objections, if any, that have been raised in such execution. Obviously the Legislature intended that the question of the validity of the assignment should be determined once and for all in the presence of the parties interested, after due notices had been served upon the judgment-debtors, and the assignors as well. It seems to me therefore that the service of this notice under Order 21, Rule 16, Civil P. C, is an essential pre-requisite to the assumption of jurisdiction by the Court in a proceeding to execute the decree, if the application for execution purports to have been made by one who is not the original decree-holder but describes himself as an assignee of the decree-holder. This point was raised and decided in Umamoyee Dasya v. Jatan Bewa : AIR1927Cal781 and it was held expressly that the absence of necessary notice on the assignor under this Rule was not a mere irregularity but it vitiated the whole execution proceeding and the sale and the same view was taken in an earlier decision of this Court in Sreenath Das v. Achutananda Mahanti (1898) 11 CLJ 354. Mr. Gupta who appears on behalf of the respondents has sought to distinguish these cases on the ground that the purchaser in these cases was not a third party but the decree-holder himself, 'whereas in the present case the auction purchaser was an absolute stranger, who could not possibly be expected to know anything except the execution order.

3. Reliance has been placed by him in this connexion upon certain pronouncements of their Lordships of the Judicial Committee which are to be found in Rewa Mahton v. Ram Kishen Singh (1887) 14 Cal 18 and Nawab Zaimulabdin Khan v. Muhammad Asghar Ali Khan (1888) 10 All 166. In the first of these cases a question arose as to whether the sale was a nullity when the order for execution was challenged as improper by reason of the judgment-debtor having a cross, judgment of an higher amount against the decree-holder which would let in the provisions of Order 21, Rule 18 of the Code. It was pointed out by their Lordships and quite rightly that if the Court had jurisdiction to execute the decree a purchaser is no more bound to inquire into the correctness of an order for execution than he is as to the correctness of the judgment upon which execution issues. In the other case it was observed that the decree-holder who purchases under his own decree, which is afterwards reversed on appeal stands on a different position from strangers who purchase thereunder bona fide, while the decree and the order for sale was valid. It was held that the latter has only to ascertain that the decree and the order are valid and he is entitled to retain his purchase while the former lose the benefit thereof on the reversal of his decree. These principles which are laid down in the above cases will not in my opinion be of any assistance to Mr. Gupta's clients in the present case. So far as the second case is concerned that arose upon certain restitution proceedings and as their Lord-ships clearly point out, a stranger purchaser will be protected if the order for sale be valid. Where however the order for sale is a nullity because of the fact that the Court had no jurisdiction to make the order by reason of no notice being served upon the assignor or the judgment-debtor as is imperative under law, this principle is of no avail and cannot extend protection to the purchaser, even if he is a third party pur. chaser. As regards the earlier case it may be pointed out that, Order 21, Rule 18, Civil P.C., does not make the execution order a nullity simply because the judgment-debtor has got a decree for a higher amount against the decree-holder with regard to which he was entitled to claim a set-off under the provisions of the Section. As I have already indicated, the provision in Order 21, Rule 16, is perfectly clear and mandatory, and compliance with its terms is essential for the assumption of jurisdiction: by the executing Court. If the Court lacks jurisdiction to pass the order for execution, the fact that the auction-purchaser is a stranger cannot make any difference. The result is that the appeal is allowed. The order of the District Judge is set aside and that of the trial Court is restored. The appellant is entitled to get his costs both of this Court and of the Court of Appeal below. The hearing fee of this Court is assessed at two gold mohurs.


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