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Sarada Prosad Roy Vs. Krishna Dome and anr. - Court Judgment

LegalCrystal Citation
CourtKolkata
Decided On
Judge
Reported in91Ind.Cas.711
AppellantSarada Prosad Roy
RespondentKrishna Dome and anr.
Cases ReferredGurudas Biwas v. Thakamani Dasi
Excerpt:
civil procedure, code, (act v of 1908), section 47, order xxi, rule 22 - execution of decree--notice to judgment-debtor, absence of--sale, validity of--order setting aside sale--appeal, second, whether lies--notice service of, proof of--report of peon, whether admissible. - .....trial court decided the issues in favour of the auction-purchaser and rejected the application. on appeal the learned district judge held that no notice under order xxi, rule 22 had been served on the judgment-debtor and that being so the sale was without jurisdiction and could not stand. the auction-purchaser has appealed to this court; he contends that the want of service of notice under order xxi, rule 22 does not render the sale void but only voidable and that it is necessary for the judgment-debtor to prove that he suffered some substantial loss or injury by reason of the failure to serve notice under order xxi, rule 22.2. the respondents contended that no appeal lies in the present case. with regard to this objection taken by the respondents it is quite clear that an appeal does he.....
Judgment:

Cuming, J.

1. This appeal arises out of an application by the judgment-debtor to set aside a certain sale on two grounds, first of all that no notice as required under Order XXI, Rule 22, had been served on him and secondly under Order XXI, Rule 90 because processes had been fraudulently suppressed, and in consequence of that suppression the land had been sold for a nominal price. The Trial Court decided the issues in favour of the auction-purchaser and rejected the application. On appeal the learned District Judge held that no notice under Order XXI, Rule 22 had been served on the judgment-debtor and that being so the sale was without jurisdiction and could not stand. The auction-purchaser has appealed to this Court; he contends that the want of service of notice under Order XXI, Rule 22 does not render the sale void but only voidable and that it is necessary for the judgment-debtor to prove that he suffered some substantial loss or injury by reason of the failure to serve notice under Order XXI, Rule 22.

2. The respondents contended that no appeal lies in the present case. With regard to this objection taken by the respondents it is quite clear that an appeal does he because this objection, namely, under Order XXI, Rule 22, comes within Section 47 of the C.P.C.

3. The appellant to support his contention has relied upon the rulings reported in the case of Kumad Bewa v. Prasanna Kumar Ray 15 Ind. Cas. 506 : 40 C. 45, where it is held that it must be proved that omission to serve such notice has resulted in substantial injury to the owner of the property sold. It is, however, unnecessary for me to discuss this case at any length, because the point has been set at rest by the decision of the Privy Council, Raghunath Das v. Sunder Das Khettry 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 : 1 L.W. 567 : 16 M.L.T. 353 : (1914) M.W.N. 147 : 20 C.L.J. 555 : 41 I.A. 251 (P.C.) and this point is particularly, dealt with at page 83 of the report. If further authority is necessary, the case of Shyam Mandal v. Satinath Banerjee 38 Ind. Cas. 493 : 44 C. 954 at p. 955 : 24 C.L.J. 523 : 21 C.W.N. 776, a decision to which I was myself a party, may be referred to and also the case of Gurudas Biwas v. Thakamani Dasi 64 Ind. Cas. 476 : 25 C.W.N. 972, a decision which was relied upon by the learned: Vakil for the appellant apparently in support of his case. It is quite clear from these decisions that the omission to serve a notice under Order XXI, Rule 22 deprives the Court of its jurisdiction to hold a sale and the sale held without having served a notice under Order XXI, Rule 22, is made without jurisdiction and is, therefore, void and a nullity. The learned Vakil seems to have argued that the lower Appellate Court was not correct in saying that there was no evidence to prove the service of the notice except the testimony of the purchaser and that Court was not willing to accept this uncorroborated statement. The learned Vakil seems to have argued that there is one other evidence and would seem to rely upon the report of the peon. As far as I can understand the peon was not examined, neither was his report proved. Clearly his report was not evidence in the case, neither can it be used as such in the circumstances. The learned Judge was, therefore, quite correct in saying that there was no evidence in proof of the service of the summons except that of the purchaser, which he was quite justified in saying that he was unwilling to accept unless it was corroborated. The learned Judge was, therefore, clearly right and this appeal must be dismissed with costs. Hearing fee one gold mohur payable to the judgment-debtor respondents.

Chakravarti, J.

4. I agree.


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