1. This Rule is directed against the order of the learned District Judge of Midnapore dated 20th August 1938 under which he dismissed summarily an order made by the Munsif of Danton on 13th July 1938 by which a certain execution sale was set aside. The material facts with which we are' concerned in the present case are briefly as follows: On 14th August 1934, a decree was obtained by opposite parties Nos. 3 and 4 against Sm. Hema Bewa, opposite party No. 9. The decree in question was not only in favour of the opposite parties, Nos. 3 and 4 but it also operated in favour of their co-sharers, opposite parties Nos. 5 to 8. It appears however, that on 12th September 1934, opposite parties Nos. 3 and 4 purchased the interest of their co-sharersand by reason of this transfer the entire interest of opposite parties Nos. 5 to 8 in respect of the decree, which had been passed on 14th August 1934, passed to opposite parties Nos. 3 and 4. On 3rd April 1935 opposite parties Nos. 3 and 4 instituted execution case No. 599 of 1935 against opposite party No. 9, Sm. Hema Bewa. On 17th July 1935, in the course of these execution proceedings Hema Bewa's holding was sold and I was bought by the petitioner in this case, Charubala Dei. Thereafter on 21st December 1937 an application under Section 174, Ben. Ten. Act, was filed by opposite parties Nos. 1 and 2 for the purpose of setting aside a sale. These persons maintained that on 14th July 1934, that is a month before the date of the rent decree against Hema Bewa, this lady had transferred her holding to them under a registered kobala. They therefore sought to have the sale set aside mainly on three grounds: (1) They contended that, on the date when the decree was passed against Hema Bewa on 14th August 1934 there was no relationship of landlord and tenant between opposite party No. 9 and the landlord. (2) They pointed out that they were not parties in the rent suit or in the subsequent execution proceedings and they maintained that as Hema Bewa had parted with her interest in the holding before the date of the decree, the execution sale which was subsequently held on 17th July 1935 should not be regarded as being effective. (3) Their third objection was to the effect that no notice under Order 21, Rule 16, Civil P.C. had been served on opposite parties Nos. 5 to 8 and upon opposite party No. 9 Hema Bewa and, this being the case, the execution sale must be regarded as a nullity.
2. The sale was set aside by the learned Munsif on the third ground only and he held that the execution sale must be regarded as a nullity because no notice had been served on the transferors and upon the judgment-debtors as required by the provisions of Order 21, Rule 16, Civil P.C. The decision of the learned Munsif was affirmed on appeal by the learned District Judge. The main argument put forward in support of the order made by the Courts below is to the effect that the provisions of Order 21, Rule 16, Civil P.C. must be regarded as mandatory and failure to comply with these provisions must therefore, render an execution sale a nullity. In support of this argument reliance was placed upon a decision of Mukherjea, J. in Surifa Katoon v. Asimannesa Bibi : AIR1938Cal734 In that case the learned Judge pointed out:
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.
3. On the facts of that particular case, he held that the execution sale with which he was dealing must be regarded as a nullity. The facts of the present case are however clearly distinguishable from those connected with the case with which Mukherjea J. was dealing in Surifa Katoon v. Asimannesa Bibi : AIR1938Cal734 cited above. In the case now before us, admittedly, on 3rd July 1938, Opposite parties Nos. 5 to 8 who were the persons who had transferred their interest in the decree on 12th September 1934 made a statement in Court to the effect that they had in fact sold their interest to opposite parties Nos. 3 and 4 and that they had full knowledge of the execution proceedings and the subsequent sale and that they had no objection to the execution of the decree. A similar statement was made by the judgment-debtor, opposite party No. 9. It therefore appears that the parties directly interested in the service of notices, under Order 21, Rule 16, Civil P.C. had expressly waived any rights which they may have had in respect of such notices. It appears from the provisions of Order 21, Rule 16, Civil P.C. that the notices to which reference is made in that Rule are merely for the benefit of the transferors and the judgment-debtors and it was apparently the intention of the Legislature to ensure that execution proceedings should not be continued unless the transferors and the judgment-debtors had had a suitable opportunity of coming forward to contest the validity of the assignment if they wished to do so. I do not think however that if the persons directly interested waive their right, acknowledge the validity of the assignment and raise no objection as far as the execution proceedings are concerned, non-compliance with the technical requirements of Order 21, Rule 16, Civil P.C. would render a sale a nullity, which had been held in the course of execution proceedings in which notices under Order 21, Rule 16, Civil P.C. had not been served.
4. In this view of the case, I think the Courts below were in error in setting aside the execution sale on account of non-compliance with the requirements of Order 21, Rule 16 of the Code. In any event, I do not consider that having regard to the facts of the case, opposite parties Nos. 1 and 2 had any locus standi under Section 174, Ben. Ten. Act, to apply to have the execution sale set aside. Sub-section (3) of Section 174 of the Act allows an application to set aside a rent sale to be made by a judgment-debtor or any person whose interests are affected by the sale. In this case admittedly opposite parties Nos. 1 and 2 were not parties to the rent suit nor to the subsequent proceedings taken in execution of the decree, which was passed on 14th August 1934. It is true that it was their case that Hema Bewa, opposite party No. 9, had transferred her interest in the holding to them a month before the decree. The fact remains however that opposite parties Nos. 1 and 2 were not parties to this decree which on the face of it proceeds upon the assumption that her interest had not been transferred to any other person before the date of the decree. It may, of course, be possible for opposite parties Nos. 1 and 2 in any properly constituted suit or appropriate proceeding to show that, as a matter of fact, the transfer as alleged by them, had actually taken place. But, as far as these proceedings are concerned, it is quite clear that they are not affected either by the decree or by the subsequent rent sale held in execution of that decree. If, during the course of the execution proceedings, opposite parties Nos. 1 and 2 are dispossessed by the decree, holders, opposite parties Nos. 3 and 4, it would, I think, be open to them to file an application under Order 21, Rule 100, Civil P.C. and the question would then have to be decided whether opposite parties Nos. 1 and 2 were really in possession of the holding on their own account by reason of the alleged transfer to them on 14th July 1934. If so, they would normally be entitled to recover possession of the holding under the provisions of Order 21, Rule 101, Civil P.C. I do not think however that on the proceedings as they stand, these persons had any locus standi to apply to have the execution sale set aside under the provisions of Section 174(3), Ben. Ten. Act.
5. In view of the considerations stated above, in my view, the orders of the Courts below cannot be supported and they are therefore set aside. This Rule is accordingly made absolute with costs. The hearing fee is assessed at three gold mohurs. The proceedings in Execution Case No. 599 of 1935 should now continue.