1. This appeal and the Rule connected with it arise out of proceedings under Section 47 and Order XXI, Rule 90, of the Civil Procedure Code under the following circumstances.
2. It appears that one-half of the properties which are the subject-matter of the proceedings were mortgaged to the appellant, and the other half to one Shama Charan Biswas. The appellant purchased the one-half mortgaged to him in execution of his mortgage decree for Rs. 4,000 on the 10th January 1905 and obtained symbolical possession in 1907. The other half was purchased by the other mortgagee.
3. The properties were comprised in a jote, and the landlord brought a suit for rent against the original tenant, the mortgagor, on the 11th February 1905, i.e., about a month after the appellant's purchase. The rent suit was decreed on the 31st March 1905, and the jote was sold in execution of the decree on the 11th April 1905 and purchased by the decree-holder for Rs. 185.
4. There was a partition suit between the appellant and the other mortgagee-purchaser, and it is alleged that when the Commissioner in the partition proceedings went on the land, he was obstructed by the agent of the decree holder purchaser : that the appellant came to know of it in May 1918 and the application to set aside the sale (out of which the appeal arises) was made on the 17th June 1918. It is to be observed that the original tenant was left in possession notwithstanding the purchase by the landlord on the 11th April 1908.
5. The Court of first instance held that no notice under Section 248 was served, and the sale was, therefore, null and void for want of jurisdiction, that the entire proceedings in execution were irregular and fraudulent from beginning to end, that all the processes were fraudulently suppressed, that the value of 25 bighas 17 cottas of land, containing the homestead of the judgment-debtors with a big building containing 13 rooms, valuable gardens and tanks with Pucca Ghats, which would be between 7,000 and 8,000 Rupees, was intentionally understated in the sale proclamation as Rs. 150 and the properties were purchased by the decree-holder (the only bidder) for Rs. 185.
6. On appeal the learned Subordinate Judge held that the service of the notice under Section 248 was not proved, but that service was not suppressed, and the mere omission to serve the notice was a mere irregularity and did not vitiate the sale. He further held that there was no fraud on the part of the decree holder; there was no suppression of processes and that the applicants, therefore, could not get the benefit of Section 18 of the Limitation Act. In the result he set aside the order of the Munsif and dismissed the application. The judgment-debtors have appealed to this Court.
7. So far as the questions of fraud and irregularity in publishing the sale and the question of Section 18 of the Limitation Act are concerned, we cannot go behind the findings of the Court of Appeal below, and so far as those questions are concerned, there is no second appeal. The only question, therefore, is whether the proceedings are void by reason of no notice having been served under Section 248, Civil Procedure Code. It is admitted that no notice under Section 248 of the Code was issued in the third (and last) execution case in which the properties were sold. In the next previous execution case (the second execution case), however, a notice was issued, but it is found that the notice was not served.
8. It is contended on behalf of the respondents that the issue of the notice is sufficient compliance with the provisions of Section 248. We do not, however, think that it is so. The object of the notice evidently is to enable the judgment) debtor to show cause, if any, why the decree should not be executed, and also to give him an opportunity of satisfying the decree. Such object cannot be attained by the Court merely issuing a notice which never reaches the judgment-debtor. In order that a notice issued may be effective, it must be served upon the judgment-debtor, and we think that the provision that notice is to be issued means that it must be served.
9. It is further contended with reference to the proviso to Section 248 (which provides that no notice is necessary, if the application is made within one year of the last order, against the party against whom execution is applied for, passed on any previous application for execution) that the order for issuing notice under Section 248 made in the second execution case was an order within the meaning of the proviso, and that, therefore, no notice was necessary to be issued in the last execution case. But an order to issue notice against a judgment-debtor cannot be held to be an order within the meaning of the proviso, which evidently contemplates an order for execution against the judgment-debtor. If the respondents contention were correct, the decree-holder can avoid serving any notice under Section 248 upon the judgment-debtor by the simple expedient of getting an order for issue of notice under that section without getting it served, and then relying upon such order in the next execution case, as the 'last order' passed on the 'previous application' against the judgment-debtor within the meaning of the proviso. We are unable to accept either of these contentions as correct.
10. The question, therefore, is whether the absence of a notice under Section 248 renders the proceedings void. Before the case of Malkarjun v. Narhari 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739 was decided by the Judicial Committee, it was held in some cases that the omission to serve notice under Section 248 rendered the proceedings void. See Gopal Chunder Chatterjee v. Gunamoni Dasi 20 C. 370 : 10 Ind. Dec. (N.S.) 251 and Shahdeo v. Ghasiram 21 C. 19 : 10 Ind. Dec. (N.S.) 645, But since Malkarjun's case 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739 it. has been held in a number of cases that the omission does not render the sale void, but is a grave irregularity sufficient by itself to justify a reversal of the sale if a proper proceeding is taken in that behalf, in other words, that it is voidable. See Livinia Ashton v. Madhabmoni 5 Ind. Cas. 390 : 11 C.L.J. 489 at pp. 495, 496 : 14 C.W.N. 569, Lakshmi Charan Sein v. Sris Chandra Roy 9 Ind. Cas. 584 : 13 C.L.J. 162 at p. 164, Rasaraj Kunai v. Prosonna Kumar 15 Ind. Cas. 506 : 40 C. 45, Sham Sunder Singh v. Jhumat Shah 11 Ind. Cas. 893 : 20 C.L.J. 337 at p. 340, Arjun Das v. Gunendra Nath 27 Ind. Cas. 294 : 20 C.L.J. 341 at p. 343 : 18 C.W.N. 1266, In Malkarjun v. Narhari 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739 Lord Hobhouse observed: 'It is then necessary for the plaintiffs to set aside the sale in order to clear the ground for redemption of the mortgage. There can be no question that omission to serve notice on the legal representative is a serious irregularity, sufficient by itself to entitle the plaintiff to vacate the sale But there may be defences to such a proceeding, and justice cannot be done unless those defences are examined by legal methods.' In the case of Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. : 304 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 Bom. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 (P.C.) : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 147: 20 C.L.J. 555, however, the Judicial Committee, in distinguishing Malkarjun's case 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739, observed: 'Their Lordships' attention was called in this connection to the case of Malkarjun v. Narhari 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739, but in their opinion there is nothing in that case which has any bearing upon the present appeal. As laid down in Gopal Chunder Chatterjee v. Cunamoni Dasi 20 C. 370 : 10 Ind. Dec. (N.S.) 251, a notice under Section 248 of the Code is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment debtor. In the case of Malkarjun v. Narhari 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739 such a notice had been served, and the Court had determined, as it had power to do for the purpose of the execution proceedings, that the party served with the notice was in fact the legal representative. It had, therefore, jurisdiction to sell, though the decision as to who was the legal representative was erroneous. There being jurisdiction to sell, and the purchasers having no notice of any irregularity, the sale held good, unless or until it were set aside by appropriate proceedings for the purpose. The present case is of a wholly different character. No proper notice was served under the section, and the respondents had full notice of, and indeed were responsible for, the irregularities of the procedure adopted.'
11. That case has been considered in some decisions of this Court, In Syam Mandal v. Sati Nath Banerjee 38 Ind. Cas. 493 : 21 C.W. N. 776 at pp. 779, 780 : 24 C.L.J. 523 : 44 C. 954 Mookerjee and Cuming, JJ., observed:--'It was pointed out by the Judicial Committee in Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. : 304 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 Bom. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 (P.C.) : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 147: 20 C.L.J. 555 that the notice prescribed by Section 248 of the Code of 1882 (now replaced by Order XXI, Rule 22) is necessary in order that the Court should obtain jurisdiction to proceed against the property of the judgment debtor by way of execution. The omission to give notice, as required by the rule, is not a mere irregularity which makes the proceeding voidable, but is a defect which goes to the root of the proceeding and renders it void for want of jurisdiction [Gopal Chunder Chatterjee v. Gunamcni Dasi 20 C. 370 : 10 Ind. Dec. (N.S.) 251, Sahdeo v. Ghasiram 21 C. 19 : 10 Ind. Dec. (N.S.) 645 and Parashram v. Balmukund 32 B. 572 : l0 Bom. L.R. 752]. From the point of view that the notice is requisite as the very foundation of the jurisdiction of the Court, it is plain that the proceedings must be treated as inoperative even though a stranger may have acquired title in course thereof, hut the position is obviously worse where the decree-holders themselves profess to acquire title on the basis of proceedings initiated by them and carried on in defiance of the statutory requirements.'
12. In the present case, as already stated, the decree-holder himself was the auction-purchaser, the property was sold at a gross under value, and the judgment-debtor was left in possession of the properties all along.
13. It is contended on behalf of the respondents that having regard to the findings of the Court of Appeal below on the question of limitation, the sale cannot be set aside. That no doubt would be so where, as in Malkarjun's case 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739, there is 'a sale valid until set aside.' It was accordingly held in that case, But if the sale is a reality at all, it is a reality defeasible only in the way pointed out by law; and it seems to their Lordships that the case must fall either within Section 311 of the Code or within Article 12(a) of the Limitation Act of 1877, or within both; any way, there exists a bar by one year's delay.' And as stated above, the Judicial Committee in the case of Raghunath Das v. Sundar Das Khetri 24 Ind. Cas. : 304 : 42 C. 72 : 27 M.L.J. 150 : 18 C.W.N. 1058 : 16 Bom. L.R. 814 : 13 A.L.J. 154 : 41 I.A. 251 (P.C.) : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 147: 20 C.L.J. 555, in distinguishing the case of Malkarjun v Narhari 25 B. 337 at p. 345 : 10 M.L.J. 368 (P.C.) : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 7. Sar. P.C.J. 739, observed: 'there being jurisdiction to sell, and the purchasers having no notice of any irrgularity, the sale held good unless or until it were set aside by appropriate proceedings for the purpose.' But those considerations cannot apply where the proceedings are without jurisdiction and the sale is a nullity. In the case of Maharaj Bahadur Singh v. Inder Chand 41 Ind. Cas 853 : 22 C.W.N. 390 : 26 C.L.J. 130 Sanderson, C.J., and Mookerjee, J., held that an order for execution made without notice under Order XXI, Rule 22, of the Civil Procedure Code (Section 248 of the old Code) is without jurisdiction and is a nullity. Having regard to the decisions cited above, we must hold that the order for sale was without jurisdiction, and the sale a nullity and that being so, the sale cannot stand. We accordingly set aside the order of the Court of Appeal below, and restore that of the Court of first instance. The parties will be relegated to the position in which they were on the date on which the last application for execution of the decree was made. Each party will bear its own costs in all Courts.
14. We make this order in the Rule, and no order is, therefore, necessary to be made in the appeal.