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Raja Wazir Narain Singh v. Bhikhari Ram
Judgment Summary — Dawson Miller, C.J. (with Mullick, J. concurring)
Factual and Procedural Background
This appeal under clause 10 of the Letters Patent arises from an application under section 213 of the Chota Nagpur Tenancy Act by judgment-debtors (the respondents) to set aside the sale of an 8-annas interest in village Mohanpore, sold in execution of a 1915 rent decree obtained by their landlords (the appellants). After an initial unsuccessful execution attempt, in July 1918 the decree-holders applied for realization by attachment and sale of movables and, if necessary, immovable property (noting the Mohanpore interest was not the tenure for which rent accrued). The Deputy Collector (exercising Deputy Commissioner powers) granted permission under section 210(2) to sell that property without first making an application for sale of the holding in respect of which arrears had accrued, but did not record reasons.
No preliminary attachment was made, although the judgment-debtors received notice and the sale (advertised) took place on 9 May 1919. Two judgment-debtors objected under section 213 on grounds that the property belonged only to them (this ground later abandoned) and that there was a material irregularity in publishing the sale (no preliminary attachment and sale held within fewer than thirty days of notification).
Proceedings below: the Sub-divisional Officer rejected the objection as immaterial (no substantial injury). On appeal the Judicial Commissioner held the failures (no recorded reasons, no attachment, sale within thirty days) were material and voided the sale, finding substantial injury. Das, J. of the High Court reversed and remanded for a specific finding on substantial injury. On remand the Judicial Commissioner (Mr. Foster) found the irregularities did not cause substantial injury and dismissed the appeal. On a further hearing before Das, J., the High Court held the earlier failure to attach rendered the sale inoperative and ordered the sale set aside, but awarded costs against the judgment-debtors for failing to raise the point earlier. The decree-holders (appellants before Dawson Miller, C.J.) now appeal that decision.
Legal Issues Presented
- Whether the failure to make a preliminary attachment of immovable property before sale, under the Civil Procedure Code and the execution provisions of the Chota Nagpur Tenancy Act, renders the sale null and void.
- Whether holding the sale within fewer than thirty days from the date of the proclamation/notifying the sale (Order XXI, rule 68 / related rules) is a material irregularity that vitiates the sale in absence of proof of substantial injury.
- Whether the Deputy Collector's failure to record reasons when granting permission under section 210(2) of the Chota Nagpur Tenancy Act is a material irregularity affecting the validity of the sale.
- Whether a party may raise at a later hearing a point going to the root of the matter that was not argued before the appellate judge on a previous occasion (consideration of preclusion under section 105 of the Civil Procedure Code and the effect of a prior remand order).
Arguments of the Parties
Respondents (judgment-debtors)
- Contended that the sale should be set aside under section 213 because there was no preliminary attachment of the property as required by the Civil Procedure Code.
- Also contended that the sale was held within less than thirty days from the date of the notification (a procedural irregularity under the Civil Procedure Code / Order XXI rules) and that this was material to invalidate the sale.
- Initially contended the property sold belonged solely to them and not to other judgment-debtors; that ground was subsequently abandoned and is no longer pursued.
- At a later hearing argued that the failure to attach rendered the sale a nullity (this point was not pressed earlier before some of the tribunals below but was argued before Das, J. on the later occasion).
Appellants (decree-holders / landlords)
- Argued before the final hearing that Das, J. should not have allowed the new point (failure to attach) to be taken because it had not been argued before him previously and the earlier remand decision operated as a final decision precluding the point (invoking section 105 CPC and the principle that a party abandoning a point before an appellate court will not be permitted to reopen it).
- Argued that even if the failure to attach was irregular, such irregularity does not render the sale void; the sale should stand unless substantial injury to the judgment-debtors is demonstrated.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Hansraj v. Bijai Ram Singh | Principle that a point not argued before an appellate court may be regarded as abandoned and cannot later be reopened. | Referred to in discussing whether the learned Judge should have allowed a point not previously argued (preclusion under section 105 CPC); the court observed the argument had force but did not decide the question because it resolved the appeal on the merits of the second point. |
| Kishory Mohan Roy v. Muhammad Muzaffar Hussain | Held that a sale is not rendered a nullity merely by reason of the absence of any attachment. | Followed and relied on to support the conclusion that failure to attach does not ipso facto void the sale; court treated this precedent as directly on point. |
| Sharoda Moyee Burmonee v. Wooma Moyee Burmonee (Jackson, J.) | Earlier decision holding an attachment was not an essential preliminary to an execution sale. | Identified as an antecedent authority followed by Kishory Mohan Roy; used to reinforce the principle that attachment is not indispensable to validity of a sale. |
| Hari Charan Singh v. Chandra Kumar Deu | Case in which Kishory Mohan Roy was referred to with approval and followed. | Noted as later judicial support for the view that absence of attachment does not render a sale void; used to show consistency in judicial approach. |
| Sheodhyan v. Bholanath (Allahabad High Court) | Held absence of attachment prior to sale is a material irregularity but not sufficient, unless substantial injury results, to vitiate the sale. | Quoted for the object of attachment (to bring property under court control and give publicity) and used to argue that absence of attachment ordinarily benefits the decree-holder and is unlikely to prejudice a judgment-debtor who had due notice. |
| Tasadduk Rasul Khan v. Ahmad Hussain (Judicial Committee) | Held that sale within thirty days of proclamation, though an irregularity, does not automatically make the sale a nullity without proof of substantial injury. | Cited to support the proposition that the shortened period between proclamation and sale is an irregularity but not fatal absent proof of substantial injury to the judgment-debtor. |
| Thakur Barmha v. Jiban Ram Marwari (Judicial Committee) | Held that in judicial sales what is sold must be the property actually attached (identity of property is essential) and a sale certificate cannot validate sale of property not attached. | Distinguished: the court read the decision as addressing identity/descriptive mistakes where a different property is purportedly sold, and held it does not support the broader proposition that in every case absence of any attachment precludes sale altogether. |
| Panchanan Das Majumdar v. Kunja Behari Malo (Calcutta High Court, 1917) | Held that the Court has no jurisdiction to sell property in execution which has not been duly attached. | Not followed. The court noted this later Calcutta decision disagreed with earlier Calcutta and Allahabad authorities and preferred to follow the earlier line of authority which permits sale without attachment subject to proof of substantial injury. |
| Sorabji Coovarji v. Kala Raghunath (Bombay High Court) | Expressed the view that no sale can take place without attachment (case complicated by release from attachment and other factors). | Not followed as binding; the court observed complicating facts in that case and preferred the earlier authorities from Calcutta and Allahabad. |
Court's Reasoning and Analysis
The Court proceeded by analysing the statutory framework and the authorities cited by both sides and the courts below. Key elements of the Court's reasoning, drawn strictly from the text of the opinion, are:
- Distinction between irregularity and nullity: the Court emphasised that mere non-compliance with procedural provisions (such as absence of attachment or shortened interval between proclamation and sale) is an irregularity under the Civil Procedure Code but does not ipso facto render a sale null and void. The Court relied on prior decisions which held the same proposition and applied that principle to the facts.
- Precedential support: the Court relied on a line of cases (Kishory Mohan Roy; Sharoda Moyee Burmonee; Hari Charan Singh; Sheodhyan v. Bholanath) to support the proposition that absence of attachment is, at most, a material irregularity requiring proof of substantial injury to vitiate the sale. The Court found this line of authority persuasive and consistent with the policy underlying attachment (protection of decree-holder and publicity).
- Statutory construction: in considering Order XXI, rule 64 (which empowers sale of attached property) and the corresponding sections of the old Code, the Court reasoned that rule 64 primarily allows the executing Court discretion to sell whole or part of attached property but does not oust the general execution powers conferred by section 51 of the Code. Under section 51 the Court has procedural powers enabling sale with or without prior attachment; thus jurisdiction to sell without attachment exists.
- Thirty-day rule: as to the complaint that the sale occurred within fewer than thirty days of the proclamation, the Court relied on authority (Tasadduk Rasul Khan) holding that such a timing irregularity does not automatically invalidate the sale unless substantial injury to the judgment-debtor is shown.
- Treatment of Thakur Barmha: the Court examined Thakur Barmha (Judicial Committee) and read it narrowly — as a case concerned with identity/misdescription and a sale certificate purporting to validate sale of a different property — and held it does not support the broader proposition that absence of attachment always precludes sale.
- Conflicting authorities: the Court noted later conflicting decisions (Panchanan Das Majumdar; Sorabji Coovarji) that supported the narrower view that sale without attachment is impermissible, but declined to follow them, preferring the earlier Calcutta and Allahabad authorities which the Court regarded as correctly stating the law.
- Application to facts: on the facts, there was no specific finding connecting the low sale price to the alleged irregularity; the judgment-debtors were present at the sale; the Judicial Commissioner found no evidence that the absence of attachment or the shortened notice caused substantial injury. Given these factual findings and the legal principle that absence of attachment is not fatal per se, the Court concluded the sale should stand.
Holding and Implications
Core Ruling: The appeal is allowed. The court held that the failure to attach the property before sale, although an irregularity, does not render the sale null and void in the absence of proof of substantial injury; likewise, holding the sale within fewer than thirty days of proclamation is an irregularity but not a nullity without proof of substantial injury.
Direct consequences (as ordered in the opinion):
- The order of the Sub-divisional Officer rejecting the judgment-debtors' objection and affirming the sale is restored.
- The appeal is allowed with costs here and in each of the Courts below.
Broader implications described by the Court (as contained in the opinion):
- The Court expressed a preference for the earlier Calcutta and Allahabad line of cases that treat absence of attachment as a material irregularity requiring proof of substantial injury to vitiate a sale, rather than an absolute bar to sale. The Judge therefore declined to follow later conflicting decisions which took a stricter view.
- No novel legal principle was laid down beyond the Court's endorsement of the established line of authority it preferred (that attachment is not an indispensable precondition to every valid execution sale; the absence of attachment and certain timing irregularities require proof of substantial injury before a sale can be set aside).
Concurring opinion: Mullick, J. agreed with the judgment.
Dawson Miller, C.J:— This is an appeal under clause 10 of the Letters Patent from a decision of Das, J. It arises out of an application made by the respondents under section 213 of the Chota Nagpur Tenancy Act to set aside a sale of their tenure in execution of a rent decree obtained by the appellants, their landlords.
The decree was obtained in the year 1915. After one unsuccessful application to obtain execution the decree-holders made a fresh application in July, 1918, asking for realization of the decretal amount by attachment and sale of the judgment-debtors' movable property and in case the decree still remained unsatisfied by attachment and sale of their immovable property, namely, an 8-annas interest in village Mohanpore. This was not the tenure or holding in respect of which the rent decree was obtained. It appears that an application was made under section 210(2), to the Deputy Collector who had the Dowers of a Deputy Commissioner for permission to sell the property in question in this appeal without first making an application for the sale of the tenure or holding in respect of which the arrears of rent had accrued. Permission was granted but it does not appear that the Deputy Collector's reasons were recorded. Section 210(3) of the Act provides that property referred to in clause (2) may be brought to sale if immovable in the manner provided in the sections therein named of the Code of Civil Procedure of 1882 including section 284, which corresponds to Order XXI, rule 64, of the present Code, which gives the executing Court power to order that any property attached by it and liable to sale, or such portion thereof as may seem necessary to satisfy the decree, shall be sold and the proceeds or a sufficient portion thereof paid to the party entitled under the decree to receive the same. No preliminary attachment of the property was in fact made but the judgment-debtors were served with notice of the sale and were aware of the date thereof. The sale having been advertized took place on the 9th May, 1919. Two of the judgment-debtors, the respondents in the present appeal, filed an objection under section 213. Their grounds of objection were (1) that the property sold belonged to them only and not to the other judgment-debtors; and (2) that there had been a material irregularity in publishing the sale. The first ground of objection was given up and we are no longer concerned with it. In support of the second ground they contended that there had been no preliminary attachment as required by the Civil Procedure Code and further that the sale was held within less than thirty days from the date of the notification. The Sub-divisional Officer held that these irregularities were not material and further that the judgment-debtors had sustained no substantial injury by reason of the irregularities.
On appeal by the judgment-debtors to the Judicial Commissioner it was held that the failure of the Deputy Collector to record his reasons for permitting the sale and the failure to attach the property under the provisions of the Civil Procedure Code as well as the fact of holding the sale within thirty days of the sale proclamation under Order XXI, rule 68, of the Civil Procedure Code, were material irregularities and rendered the sale void. The learned Judicial Commissioner further found that there was substantial injury to the appellants adding:
“although in the view I take such a finding is unnecessary. This injury resulted from the prejudice to their rights which to my mind must of necessity follow from, the adoption of the shortened procedure.”
A second appeal was preferred by the decree-holders to the High Court and was heard before Das. J. who held that mere non-compliance with the provisions of Order XXI, rule 62, of the Civil Procedure Code, does not ipso facto make the sale a nullity and that the sale should not be set aside without proof of substantial injury to the judgment-debtors. He further considered that the finding of the learned Judicial Commissioner as to substantial injury was not a proper finding in law as it was based upon the view that non-compliance with the rule mentioned necessarily prejudiced the rights of the judgment-debtors. He accordingly set aside the order of the learned Judicial Commissioner and remanded the case to him for a decision according to law with directions to come to a definite finding as to whether the judgment-debtors sustained substantial injury, and if so, whether such injury was sustained by reason of the admitted irregularity. It would appear from this judgment that no point was taken before the learned Judge on behalf of the judgment-deb tors that the sale was void either by reason of the non-attachment of the property or by failure of the Deputy Collector to record his reasons for permitting the sale under section 210 of the Chota Nagpur Tenancy Act and it is not suggested before us now that these points were argued before him.
When the case went back on remand Mr. Foster had succeeded Mr. Reid as Judicial Commissioner of Chota Nagpur. Mr. Foster found that the irregularities complained of were material, as the sale was held twenty-eight days instead of thirty days after the notice published in Court. The price fetched at the sale was considerably below the value set upon the property by the judgment-debtors but there is no finding as to what the value of the property was. No evidence was produced to show that the low price was directly due to the irregularity, the judgment-debtors were present at the time of the sale and the learned Judicial Commissioner considered that if the property were worth Rs. 6,000 as they stated it was very unlikely that they could not have raised a loan of under Rs. 500 to save the property by depositing the decretal amount. He also considered that the absence of attachment and the fact that the sale was held within thirty days of the notice did not cause any substantial injury to the judgment-debtors. He accordingly dismissed the appeal. Again it should be pointed out that it was nowhere argued before Mr. Foster that the sale was void by reason of any irregularity which had taken place.
From this order the judgment-debtors preferred a second appeal to the High Court which again came before Das, J. The learned Judge did not differ from the conclusions of fact arrived at by the learned Judicial Commissioner but it was argued before him that the failure to attach the property before sale rendered the sale a nullity. The learned Judge acceded to this view and set aside the judgment of the learned Judicial Commissioner and declared that the sale was inoperative and ought to be set aside, but as the point had not been argued before him on the previous occasion when he made the order of remand he ordered the judgment-debtors, the appellants before him, to pay the costs of that appeal and of the hearing before the Judicial Commissioner on remand.
From this decision the present appeal is brought by the decree-holders. Two points have been argued before us in support of the appeal: (1) that the learned Judge, whose decision is now under appeal, ought not to have allowed the point, upon which his decision was based, to be taken as it had not been argued before him on the previous occasion: and (2) that the failure to attach the property although irregular does not render the sale void. In support of the first point, it is argued that the order of remand which set aside the decree of the Judicial Commissioner was a final order from which an appeal would lie to a Division Bench and that, no appeal having been preferred from that decision on behalf of the judgment-debtors, the learned Judge ought to have considered the point raised before him as precluded by his previous interment, under the provisions of section 105 of the Civil Procedure Code. Assuming that an appeal lay from Das, J., I think that there is much force in the argument that where a point which goes to the root of the suit is not argued before an appellate Court it must be taken to have been abandoned and if an appeal is permissible and no appeal is preferred the party who abandoned the point should not be allowed to reopen it subsequently in the same case [see Hansraj v. Bijai Ram Singh] It is unnecessary, however, to decide this question as in the view I take of the second point the appellants must succeed.
In my opinion the failure to attach the property before sale, although an irregularity under the Civil Procedure Code, does not render the sale null and void. In Kishory Mohan Roy v. Muhammad Muzaffar Hussain it was held that a sale is not to be considered a nullity merely by reason of the absence of any attachment. In that case the sale had been confirmed and a sale certificate granted before the question arose. In my opinion this fact does not distinguish that decision from the present case because if the sale was in fact a nullity by reason of the absence of attachment its subsequent confirmation could not make it valid. That case followed the earlier decision of Jackson, J., in Sharoda Moyee Burmonee v. Wooma Moyee Burmonee which also held that an attachment was not an essential preliminary to an execution sale. The case of Kishory Mohan Roy v. Muhammad Muzaffar Hussain was referred to with approval and followed by Woodroffe, J., in Hari Charan Singh v. Chandra Kumar Deu. The High Court at Allahabad has also held in Sheodhyan v. Bholanath that the absence of an attachment prior to the sale of immovable property in execution of a decree amounts to no more than a material irregularity and is not sufficient, unless substantial injury is caused thereby, to vitiate the sale. The object of the attachment is, as stated in that case, to bring the property under the control of the Court with a view to preventing the judgment-debtor from alienating it and the requirement that the order of attachment should be publicly proclaimed is merely one of the requirements of law for perfecting the attachment. The main object of the proclamation of the order is to give publicity to the fact that the sale of the particular property attached is in contemplation and to warn all persons against taking a transfer of it from the judgment debtor to the prejudice of the rights of the decree-holder. It is difficult to see why the absence of attachment which is primarily in the interests of the decree-holder can prejudice the rights of the judgment-debtor who has due notice of the sale.
It was contended, however, that the Court has no power to sell property not ordered to be sold by the decree unless such property has first been attached, and Order XXI, rule 64, was relied upon in support of this argument. That rule no doubt gives the Court, executing the decree power, to order that any property attached by it and liable to sale shall be sold or only such portion thereof as may seem necessary to satisfy the decree. The object of this rule would appear to be to give the Court a discretion to sell the whole or a part of the attached property as it thinks fit, but under section 51 of the Code, which relates to procedure in execution, the general powers of a Court executing decrees enable it to order execution by attachment and sale or by sale without attachment of any property. It seems clear, therefore, that the jurisdiction of the Court to sell without attachment exists. Again the irregularity arising by reason of the sale within thirty days of the proclamation although clearly an irregularity has not the effect of making the sale a nullity without proof of substantial injury thereby to the judgment-debtor. It was so decided by their Lordships of the Judicial Committee in Tasadduk Rasul Khan v. Ahmad Hussain.
The case of Thakur Barmha v. Jiban Ram Marwari was relied on by the respondents for the proposition that nothing could be sold at a Court sale except the property attached. The effect of that decision, however, as I read it, merely is that where property is in fact attached and sold under the description mentioned in the schedule, what is in fact sold is the property comprised within the description and not some other property which was not in fact attached and sold. In that case a 6-annas share in a certain mahal, described as subject to a mortgage in the schedule to which the attachment referred, was attached in execution and advertized for sale and eventually sold. Some months later the purchasers applied for a certificate of sale alleging that there had been a mistake in the schedule which ought to have described the property as a 6-annas unencumbered share. Ten annas were subject to the mortgage and six annas were free, and no doubt a mistake had been made. A sale certificate was granted by the Subordinate Judge with the altered description of the property and a notification was issued in the Calcutta Gazette describing the property as unencumbered. This procedure was approved by the High Court but on appeal to His Majesty in Council their Lordships held that which is sold in a judicial sale of this kind can be nothing but the property attached and that property to conclusively described in and by the schedule to which the attachment refers and that the effect of the certificate was to make the sale that of a property not attached which could not be sold in such proceedings. It was held that it was not a matter of mere mis-description which could be treated as an irregularity but one of identity and that an existing property accurately described in the schedule had been sold, whereas the order of the Subordinate Judge granted a sale certificate which stated that another and different property had been purchased at the sale, and that what was clone could not validate a sale of property which had not in fact taken place. The decision is no authority for the proposition that if no attachment is in fact made the Court has no power to sell property at all.
It is true that, in spite of the decisions already referred to of the Calcutta High Court, that Court in the more recent case of Panchanan Das Majumdar v. Kunja Behari Malo decided in 1917, held that the Court has no jurisdiction to sell property in execution which has not been duly attached. In that case the decision of their Lordships of the Judicial Committee in Thakur Barmha v. Jiban Ram, Marwari was relied upon in support of the decision but, as already stated, in my opinion, the decision of the Judicial Committee does not support the proposition there laid down. The High Court of Bombay in the case of Sorabji Coovarji v. Kala Raghunath has also expressed the view that no sale can take place without attachment. In that case before the sale actually took place an appeal against the order for sale made by the executing Court was preferred to the District Judge. Pending that appeal the property was sold. The District Judge dismissed the appeal but on second, appeal to the High Court that Court set aside the sale considering that property could only be brought to sale after it had been duly attached and whilst it remained under attachment. That case, however, was complicated by the fact that before sale the decretal amount of the attaching decree-holders had been paid into Court and the property released from attachment, but it was ordered, nevertheless, to be sold at the instance of other judgment-creditors who applied for rateable distribution of the money paid into Court and a further sale of the property which had been released but not re-attached. In so far as that case and the later decision of the Calcutta High Court in Panchanan Das Majumdar v. Kunja Behari Malo differ from the earlier decisions of the Calcutta High Court and the decisions of the Allahabad High Court already referred to, I prefer to follow the latter which, in my view, express the correct principle. In my opinion this appeal should be allowed with costs here and in each of the Courts below and the order of the Sub-divisional Officer rejecting the judgment-debtors' objection and affirming the sale should be restored.
Mullick, J.:— I agree.
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