Wort, J.:— This is an appeal from an order of the Subordinate Judge of Dhanbad made on the 25th May, 1929, in execution proceedings. There was an application under Order XXI, rule 90 of the Code of Civil Procedure to set aside a sale held in execution. It appears that in the first place there had been an application on the side of the judgment-debtor for an adjournment with a view to calling evidence. That prayer was rejected. At the same time the learned Judge came to determine the question which arose under Order XXI, rule 90. It appears that the objection on the part of the representative of the judgment-debtor was that no notice had been served under Order XXI, rule 22. The learned Judge came to the conclusion, on the basis of an affidavit sworn by a person who had served the notice, that a notice had been served. He also decided that there was no evidence that the price which had been obtained in the sale was inadequate and, therefore, he dismissed the application under Order XXI, rule 90.

Three points are raised by Mr. Chaudhuri on behalf of the representative of the judgment-debtor; first, that there was no notice under Order XXI, rule 22, secondly, that such notice as was issued was not properly served in accordance with the order for substituted service made by the Subordinate Judge, and, thirdly, that the learned Judge should not have rejected the application on the side of the judgment-debtor for adjournment of the hearing of the application. The second and third questions, in the view I take of the case, do not arise. As regards the argument relating to Order XXI, rule 22, what appears to have happened was that when Mr. C.J Smith, the judgment-debtor, died there was a petition on the part of the decree-holder to substitute Mrs. D. Smith and Mr. T. Smith as the legal representatives of the judgment-debtor. Petitions to that effect were filed before the Subordinate Judge and ultimately, after the notice which has been questioned in this case had been served, an order was made on the 21st September, 1928, substituting the persons I have named in place of Mr. C.J Smith Order XXI, rule 22, provides that

“where an application for execution is made against the legal representative of a party to the decree the court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.”

It is admitted, and cannot be denied, that no such notice as is contemplated by Order XXI, rule 22, was ever served upon any person. I have already referred to the nature of the notice which in fact was alleged to have been served, that being a notice for substitution and from one point of view it has been argued that because the decree-holder has done something an excess of what is necessary in the circumstances it cannot be held that the sale was invalid.

The learned Advocate on behalf of the respondents in this case argues that Order XXI, rule 22, applies only to those cases in which execution is issued for the first time against the illegal representative of a party to the decree and it is not contemplated by that rule that such a notice should for issued in a case where execution has been taken out against a judgment-debtor, as in this case, where subsequently the judgment-debtor dies and then execution is sought to be taken out against the legal representatives. The argument, therefore, appears to be that in these circumstances the proper application to be made was in fact made, namely, an application for substitution. A case in the Madras High Court, Ramanathan Chettiar v. Ramanathan Chettiar, is quoted in support of that argument. This matter, however, appears to have been finally decided in the case of Raghunath Das v. Sundar Das Khetri. In the first place I must state that the case just mentioned was decided under the Code of 1882, section 248 being similar to Order XXI, rule 22 of the present Civil Procedure Code. There is this difference. There is a difference in the arrangement of the sentences and in the present rule there is a proviso or sub-clause which gives the Court jurisdiction to omit the notice in cases where the issue of such notice would cause unreasonable delay or defeat the ends of justice. In dealing with the point which has been argued on this provision it must be said that it cannot be denied that this is not a case in which the Judge considered that unreasonable delay had occurred or that the ends of justice would be defeated which, therefore, excused the issue of such notice. I have already pointed out, in an earlier part of my observations, that the parties and the Court appear to have been under the impression, that they were, carrying out the provisions of the Code by issuing a, notice upon the legal representatives to shew cause why they should not be substituted. It is, therefore, quite clear that this, is not a case which comes under the sub-clause of Order XXI, rule 22. Apart from that sub-clause I have already stated that the provisions of the rule are similar to those of section 248. Now to go back to the case of Raghunath Das v. Sundar Das Khetri, Lord Parker of Waddington, delivering the opinion of the Judicial Committee of the Privy-Council stated that the omission of a notice under section 248 resulted in the sale being void. In the case of the Madras High Court it was sought to differentiate the case of the Judicial Committee of the Privy Council, to which I have just referred, on two grounds, first that the expression “legal representative” was not used by the learned law Lord who delivered the decision of the Judicial Committee, and, secondly, that there was no explicit statement by him that the sale was void. Always assuming that the decision of the Madras High Court was correctly reported I would say with great respect that I do not agree with the observations to which I have just referred. First, so far as the fact that Lord Parker did not mention the expression “legal representative” is concerned, the answer is that he was dealing with section 248 which expressly used those words in sub-clause (b) and which he was applying to the facts of the case, and, secondly, so far as not stating that the sale was void, he expressly came to the conclusion that a purchaser who had purchased property in an execution sale in which a notice under sub-clause (b) had been omitted had got no title from his purchase.

As regards the main question which has been argued on behalf of the respondents, namely, that Order XXI, rule 22, applies only to those cases in which execution is taken out against the representative of the judgment-debtor in the first instance, the answer is also contained in the case of Raghunath Das v. Sundar Das Khetri. That was a case in which execution was taken out against the judgment-debtor. He then became insolvent. An official receiver or assignee was appointed and the notice which was taken out by the decree-holder was the same kind of notice which was taken out in the case before us, namely, a notice to shew cause why he should not be joined or substituted in place of the judgment-debtor. It was pointed out by the Judicial Committee that notice was not correct. A form of notice was provided for by section 248, that is to say, a notice to the party against whom execution is applied for requiring him to shew cause, within a period to be fixed, why the decree should not be executed against him. The reasons why the section should be strictly applied were pointed out by Lord Parker and in any event the I have already stated, definitely decides the two questions before us, first, that Order XXI, rule 22, applies to a case of this kind, and, secondly, that if no notice has been issued as contemplated by Order XXI, rule 22, sub-clause (b), then the sale was invalid.

Arriving at this conclusion as I do, the other two questions argued by the appellant do not arise but I propose to express my view on the first. The question was whether the notice in fact was served. The learned Subordinate Judge relied upon the affidavit of the peon who purported to serve the notice. He said that he went to Bagdigi colliery and, on identification, the peon, finding Mr. Sen the proper officer of the judgment-debtor present, gave him the notice. The affidavit goes on to say that on the refusal of Mr. Sen to accept the notice and give a receipt it was affixed to the outer door of the judgment-debtor's office. The learned Subordinate Judge, in my opinion, was entitled to rely upon this as prima facie evidence of service. It is said that there was no evidence that Mr. Sen was the proper officer but in the absence of evidence on the part of the judgment-debtor or his representative it was not for the decree-holder or the officer of the Court, whoever he might be, to set out in detail the reasons why he came to the conclusion that Mr. Sen was the proper officer of the judgment-debtor. It was further argued that the address was not the proper address of the judgment-debtor, that the colliery was in the hands of a receiver and that in all probability Mr. Sen was the officer or manager of the receiver. I have already stated, and repeat, that no evidence at all was given in the court below and the only documents relied upon in this Court are a petition of the receiver and a petition of the petitioner before us. In my opinion we cannot look to these to establish the fact that the property was in the hands of a receiver. For these reasons, if it were necessary to express an opinion, I should be satisfied that the proof which was given was sufficient to entitle the Court to proceed. In these circumstances the, appeal must be allowed with, costs and the sale must be set aside. The purchase money paid and distributed amongst the creditors will be refunded to the decree-holder.

Fazl Ali, J.:— It was held by the Judicial Committee in Raghunath Das v. Sundar Das Khetri that a notice calling upon the official assignee to shew cause why he should not be substituted for the insolvent judgment-debtor was not a proper notice under section 248 of the Code of Civil Procedure of 1882 (a provision to which Order XXI, rule 22 of the present Code corresponds) and that the notice under that section should have called upon him to shew cause why the decree should not be executed against him. In view of this decision, it is difficult to construe the notice, dated the 30th August, 1928, issued by the Subordinate Judge as a notice under Order XXI, rule 22. Assuming, however, that it may be treated as such, I am not at all sure whether on the materials on the record it can be held that the notice was properly served. It is true that primarily it is for the judgment-debtor to prove that the notice was not served, but it is open to the judgment-debtor to argue on the materials placed on the record on behalf of the decree-holder that there was no proper service of the notice. In this case all that we have before us is the report of the peon and an affidavit of the identifier who accompanied the peon to serve the notice. The peon says in his report that the notice was presented to one Mr. Sen

“an officer competent to accept the notice in the name of the defendants.”

but he refused to accept it and give a receipt and so the notice was affixed on the outer door of the office. The same facts are repeated in the affidavit of the identifier who describes Mr. Sen as

“the proper officer of the judgment-debtors.”

One would have expected some clearer description as to who Mr. Sen is and what connection he has with the heirs of the judgment-debtor to whom the notice was addressed and, after all, the description given of this gentleman by the peon as well as by the identifier merely represent their opinion that he was a person competent to accept notice on behalf of the judgment-debtors but they do not shew in what way he represented them. Order V, rule 12, provides

“Wherever it is practicable, service shall be made on the defendant in person, unless he has an agent empowered to accept service, in which case service on such agent shall be sufficient.”

There is nothing on the record to shew, beyond the mere opinion of the peon and the identifier that Mr. Sen was empowered to accept service on behalf of the persons to whom the notice was issued. Again Order V, rule 17, says that the notice may be affixed on the outer door or some other conspicuous part of the house in which the defendant ordinarily resides or carries, on business or personally works for gain, if the defendant or his agent refuses to sign the acknowledgment. It cannot be said that the persons to whom the notice was addressed resided at the colliery where the notice was sent, because in the application-filed by the decree-holder, dated the 30th August, 1928, it is: said that Mr. T. Smith resides at Khorassi Estate, Purnea, and Mrs. D.M Smith resides at 10 Anwar Sha Road, Calcutta. It is also urged on behalf of the appellant, and the statement is supported by the second order recorded in the order-sheet of this case, that Bagdigi colliery was in the possession of a receiver appointed by the Court and so it is difficult to say that the persons who were being proceeded against were at the moment carrying on business or personally working for gain at this, colliery, I am, therefore, inclined to think that there was neither a valid notice under Order XXI, rule 22, in this case nor was the notice which was regarded as such by the learned Subordinate Judge properly served. In this view I agree that the appeal should be allowed with costs.

Appeal allowed.