Fakhrul Islam v. Rani Bhubaneshwari Kuer

Kulwant Sahay, J.:— (After stating the facts set out above, proceeded as follows:) The point argued by the learned Advocate on behalf of the appellants is that the entire proceeding in execution was without jurisdiction inasmuch as the notice under Order XXI, rule 22 had not been served upon the judgment-debtors. Now, the finding of the learned District Judge, which is a finding of fact and must be accepted, was that a notice under Order XXI, rule 22, was issued but suppressed. The first sale was held on the 26th July, 1926. That sale was set aside on the 4th December, 1926, on the ground that the notice under Order XXI, rule 22, had been suppressed. After setting aside the sale, the Court made an order directing the decree-holder to take further steps in execution and in the same execution proceedings fresh sale proclamations were issued and the property was sold. The contention that after the setting aside of the sale on the 26th July, 1926, the decree-holders ought to have taken out fresh notice under Order XXI, rule 22, is in my opinion not sound. It was a continuation of the same execution proceedings in which a notice under Order XXI, rule 22, had already been issued.

It is next contended that a sale without the service of the notice under Order XXI, rule 22, was without jurisdiction. In ordinary circumstances it Would be so and there are authorities to the effect that a sale held without the service of the notice under Order XXI, rule 22, is a sale held without jurisdiction. In the present case, however, the facts are that a notice was issued but suppressed. Thereafter the judgment-debtors appeared and raised objections to the execution of the decree as well as to the validity of the sale. Those objections were heard and disposed of by the Subordinate Judge, and thereafter he directed the decree-holder to take further steps. Under the circumstances there is no sense in insisting on the issue of a fresh notice under Order XXI, rule 22, and the service thereof, requiring the judgment-debtors to show cause why execution should not proceed. The judgment-debtors had appeared in Court and such objections had been taken by them. There was no necessity for issuing and serving fresh notices under Order XXI, rule 22, before holding the sale. All that Order XXI, rule 22, requires is that an opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not, proceed. If a notice is issued but not served and yet the judgment-debtors appear in Court and raise objections, the object of Order XXI, rule 22, is attained. In my opinion the fresh issue of a notice under Order XXI, rule 22 after the setting aside of the first sale was not necessary and the notice issued before the sale of the 26th July, 1926, was sufficient in order to give the Court jurisdiction to hold the sale, especially when the judgment-debtors had appeared and taken all the objections that they could take to the execution proceedings.

The learned Advocate for the appellants has argued that the District Judge was wrong in holding that the failure to record reasons for not issuing a notice under Order XXI, rule 22, as prescribed by sub-rule (2), amounted to an illegality and not an irregularity and therefore the sale ought to be set aside. In my opinion the question as to whether the notice was dispensed with under sub-rule (2) does not arise in the present case, because a notice had actually been issued and although not served, yet the judgment-debtors had notice of the execution and appeared in Court. There was no dispensing with the issue of the notice under sub-rule (2) of rule 22.

Under the circumstances I am of opinion that the order of the learned District Judge is correct and these appeals must be dismissed with costs.

Macpherson, J.:— I agree.

Appeals dismissed.