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Gurudas Biswas , v. Bhowanipore Zemindary Co. Ld. S, Opposite Party.
Factual and Procedural Background
The proceedings arise under Section 47 and Order XXI, Rule 90 of the Civil Procedure Code in relation to properties that were partly mortgaged to the appellant and partly to Shama Charan Biswas. The appellant purchased the half mortgaged to him in execution of his mortgage decree for Rs. 4,000 on 10 January 1905 and obtained symbolic possession in 1907; the other half was purchased by the other mortgagee.
The landlord (decree-holder) brought a rent suit against the original tenant (the mortgagor) on 11 February 1905. That rent suit was decreed on 31 March 1905, the joint property (jote) was sold in execution on 11 April 1905 and purchased by the decree-holder for Rs. 185. The original tenant was left in possession notwithstanding that purchase.
A partition suit between the appellant and the other mortgagee-purchaser led to an inspection by the Commissioner; it is alleged that the Commissioner was obstructed by the agent of the decree-holder purchaser. The appellant became aware of this in May 1918 and applied to set aside the sale on 17 June 1918. The Court of first instance held that no notice under Section 248 was served and characterized the sale and execution proceedings as null and void for want of jurisdiction, further finding irregularity and fraud (including intentional understatement of value and purchase by the decree-holder as sole bidder).
On appeal the Subordinate Judge held that although the service of the notice under Section 248 was not proved, the omission amounted to mere irregularity and did not vitiate the sale; he found no fraud by the decree-holder and set aside the Munsif's order and dismissed the application. The judgment-debtors appealed to the present Court.
Legal Issues Presented
- Whether the omission to serve notice under Section 248 (Order XXI, Rule 22 of the present Code) renders the execution proceedings and the consequent sale void for want of jurisdiction, or whether the omission is merely a grave irregularity making the sale voidable.
- Whether an order for issuing notice in a previous execution proceeding (when the notice was not served) qualifies as the "last order" within the proviso to Section 248 so as to dispense with service of notice in a subsequent execution application made within one year.
- Whether, in the circumstances of this case (decree-holder being purchaser, gross under-valuation, judgment-debtor left in possession), the sale must be set aside despite findings on limitation by the Court of Appeal.
Arguments of the Parties
Appellant's Arguments
- The appellant sought to set aside the sale on the ground that no notice under Section 248 was served, and therefore the sale and the execution proceedings were without jurisdiction and void.
- The appellant alleged irregularity and fraud in the execution: intentional understatement of property value in the proclamation, sale at gross under-value, suppression of processes, the decree-holder being the only bidder and purchaser, and the judgment-debtor being left in possession.
Respondents' Arguments
- The respondents contended that mere issuance (or an order for issuance) of the notice under Section 248 is sufficient compliance with the provision and that actual service is not required to give validity to the proceedings.
- They further argued that the order for issuing notice in the previous (second) execution case should be treated as an "order" within the proviso to Section 248, so that no fresh notice was necessary in the last execution case (provided the last order was within one year).
- Relying on the findings of limitation by the Court of Appeal, the respondents contended that the sale could not be set aside on limitation grounds.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Malkarjun v. Narhari (25 B. 337 at p. 345 ; 10 M.L.J. 368 (P.C.) ; 27 I.A. 216) | Held in that case omission to serve notice did not render sale void where notice had been served in substance and the Court had jurisdiction to determine legal representative; sale held valid until set aside. | The Court distinguished that case: Malkarjun involved service (or effective service) and a court determination of the legal representative, so it was not applicable where no proper notice was served. The present court treated Malkarjun as not controlling the outcome here. |
| Gopal Chunder Chatterjee v. Gunamoni Dasi (20 C. 370) | Established that a notice under Section 248 is necessary for the Court to obtain jurisdiction to sell property by execution against the legal representative; omission was treated as jurisdictional. | Used to support the proposition that service of notice is required for jurisdiction; treated as authority for the jurisdictional importance of Section 248 notice. |
| Shahdeo v. Ghasiram (21 C. 19) | Earlier decisions holding omission to serve notice under Section 248 rendered proceedings void. | Cited as part of authorities recognizing omission as going to jurisdiction in some earlier cases. |
| Livinia Ashton v. Madhabmoni (5 Ind. Cas. 390 ; 11 C.L.J. 489 at pp. 495-496 ; 14 C.W.N. 569) | Held omission to serve notice is a grave irregularity sufficient to justify reversal of a sale if proper proceedings are taken (i.e., voidable perspective). | Presented as part of a line of decisions holding that omission may be grave irregularity and voidable; the Court contrasted these authorities with those treating omission as jurisdictional in context. |
| Lakshmi Charan Sein v. Sris Chandra Roy (9 Ind. Cas. 584 ; 13 C.L.J. 162 at p. 164) | One of the cases holding omission to serve notice does not necessarily render sale void but is a grave irregularity (voidable). | Included among authorities showing the development of the view that omission can be voidable rather than void; used in the court's survey of precedent. |
| Rasaraj Kunai v. Prosonna Kumar (15 Ind. Cas. 506 ; 40 C. 45) | Cited among decisions treating omission as grave irregularity (voidable). | Used in the catalogue of cases illustrating the voidable view of omission to serve notice. |
| Sham Sunder Singh v. Jhumat Shah (11 Ind. Cas. 893 ; 20 C.L.J. 337 at p. 340) | Cited as a case where omission was viewed as irregularity (voidable). | Summarised in the court's survey of authorities adopting the voidable approach. |
| Arjun Das v. Gunendra Nath (27 Ind. Cas. 294 ; 20 C.L.J. 341 at p. 343 ; 18 C.W.N. 1266) | Another precedent in the group treating omission as grave irregularity and voidable. | Referred to in the survey of authorities where omission did not automatically render the sale void. |
| Raghunath Das v. Sundar Das Khetri (24 Ind. Cas. 304 ; 42 C. 72 ; 27 M.L.J. 150 ; (1914) M.W.N. 147 ; 20 C.L.J. 555) | The Judicial Committee distinguished Malkarjun and stated that a notice under Section 248 is necessary for the Court to obtain jurisdiction to execute against the property of a deceased judgment-debtor; where no proper notice was served the proceedings were of a different character and could be inoperative. | The Court relied on this decision as an authority supporting the view that absence of proper notice can render proceedings without jurisdiction and thus null; it helped distinguish Malkarjun and support setting aside the sale in present facts. |
| 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) | Quoted Raghunath Das and held that omission to give notice under Section 248 (Order XXI, Rule 22) is not a mere irregularity but a defect going to the root of proceedings, rendering them void for want of jurisdiction. | The Court quoted this decision to reinforce the principle that omission to serve the prescribed notice can render execution proceedings void for want of jurisdiction. |
| Parashram v. Balmukund (32 B. 572 ; 10 Bom. L.R. 752) | Cited among earlier authorities treating omission as jurisdictional in nature. | Included in the set of authorities supporting the view that omission to serve notice may render proceedings void. |
| Maharaj Bahadur Singh v. Inder Chand (41 Ind. Cas. 853 ; 22 C.W.N. 390 ; 26 C.L.J. 130) | Held that an order for execution made without notice under Order XXI, Rule 22 (Section 248 of the old Code) is without jurisdiction and is a nullity. | The Court cited this decision as directly supporting the conclusion that an order for sale without the statutorily required notice is without jurisdiction and null, and relied on it in reaching the final holding. |
Court's Reasoning and Analysis
The Court confined its inquiry to the single question properly before it: whether the absence of a notice under Section 248 rendered the execution proceedings and sale void. It accepted as admitted that no notice under Section 248 was issued in the last execution case in which the properties were sold; in the prior execution case a notice was ordered issued but was not proved to have been served.
The Court analyzed the respondents' contention that mere issue of a notice (or an order for issue) suffices. It rejected that contention, reasoning that the object of the notice is to enable the judgment-debtor to show cause and to have an opportunity to satisfy the decree, and that object cannot be achieved if the notice never reaches the judgment-debtor. Therefore, an issued notice must be served to be effective; "issue" was interpreted to include service.
With respect to the proviso to Section 248 (excusing notice if an application is made within one year of the last order passed on a previous application), the Court rejected the respondents' argument that an order to issue notice in a previous execution case (where the notice was not served) could be treated as the "order" contemplated by the proviso. The Court explained that the proviso contemplates an order for execution against the judgment-debtor, not merely an order for issue of notice which has not been served. Accepting the respondents' construction would permit decree-holders to avoid serving any notice by obtaining an order for issue of notice and then relying on that order later — a result the Court refused to accept.
The Court then reviewed precedent. It noted a line of authorities that treated omission to serve notice as a grave irregularity and voidable (including Livinia Ashton and others), and contrasted these with decisions (including Raghunath Das and Syam Mandal) in which the Judicial Committee and this Court recognized that where the requisite notice is necessary to found jurisdiction, omission goes to the root and renders proceedings void. It distinguished Malkarjun's case on the ground that in Malkarjun an effective notice had been served and the Court had determined (for execution purposes) who the legal representative was, thereby conferring jurisdiction in substance.
The Court emphasized several factual features of the present case: the decree-holder was the auction-purchaser; the property was sold at a gross under-value; and the judgment-debtor remained in possession. Against this factual backdrop and in light of the cited authorities (notably Raghunath Das, Syam Mandal and Maharaj Bahadur Singh), the Court concluded that the order for sale made without the statutory notice was without jurisdiction and the sale was a nullity.
Because the Court regarded the proceedings as without jurisdiction, it held that the view of the Court of Appeal (that omission was mere irregularity and the sale stood unless set aside) could not be applied here; where proceedings are without jurisdiction the sale is a nullity and cannot stand.
Holding and Implications
Holding: The Court held that the order for sale made without service of the notice required by Section 248 (Order XXI, Rule 22) was without jurisdiction and that the sale was a nullity. The Court set aside the order of the Court of Appeal and restored the decision of the Court of first instance.
Consequences and immediate implications:
- The sale is declared void and cannot stand; the parties are to be placed in the position they occupied on the date when the last application for execution of the decree was made.
- Each party will bear its own costs in all Courts.
- The Court made the order in the Rule and therefore no separate order was necessary in the appeal.
Broader implications: The opinion applies and follows existing precedents (notably Raghunath Das, Syam Mandal and Maharaj Bahadur Singh) emphasizing that omission to serve the statutory notice can render execution proceedings void for want of jurisdiction in appropriate circumstances. The opinion does not purport to announce a new principle beyond the authorities discussed; it applies precedent to the facts at hand and emphasizes that procedural protections in Section 248 are jurisdictional where their absence defeats the statutory purpose.
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.
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