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Bandu Hari v. Bhagya Laxman And Ors.
Structured Summary of the Opinion
Factual and Procedural Background
The following narrative is taken exclusively from the provided opinion.
In 1939 respondent 3 filed a suit against respondents 1 and 2 for possession of the suit property which he had previously purchased. A consent decree was passed on 24-1-1941 by which respondent 3 relinquished his claim to the land and respondent 1 (the contesting defendant and later judgment-debtor) agreed to pay Rs. 125 and interest in four equal instalments; the first instalment was payable in December 1941. The decree placed a charge on the suit property and provided that in case of default the decree-holder could recover the amount by sale of the suit property.
The first two instalments, due December 1941 and December 1942, were not paid. On 12-4-1943 (more than two years after the decree) respondent 3 filed a darkhast for recovery of those instalments by sale of the suit property. Order 21, Rule 22, Civil P.C., required that where execution is sought more than two years after the decree the Court must issue a notice to the person against whom execution is applied for requiring him to show cause why execution should not be applied.
No such Court-issued notice under Order 21, Rule 22 was issued to the judgment-debtors before the executing Court ordered that part of the suit property be sold and transmitted the papers to the Collector to carry out the sale. The Collector, however, issued notices to the judgment-debtors. The judgment-debtor (respondent 1) appeared before the Collector, claimed the benefit of the Bombay Small Holders Relief Act and was given time to pay, but failed to do so. After due notice the property was put up for sale and sold on 12-1-1944 to the present appellant for Rs. 170.
Subsequently the judgment-debtor again applied to the Collector for benefit under the Small Holders Relief Act and was given further time but did not pay. He filed a suit seeking a declaration that the sale in favour of the appellant was illegal; that suit was dismissed for default on 24-7-1945, and his application to set aside the order of dismissal was rejected on 3-12-1945. The Collector confirmed the sale on 29-10-1945 and returned the papers to the Court.
When the remaining two instalments became due, the decree-holder sought to amend the darkhast to execute for those instalments also. The executing Court then issued a notice under Order 21, Rule 22 to the judgment-debtor. He appeared and contended that because no notice under Order 21, Rule 22 had been issued by the Court prior to the Collector's sale, the Court had no jurisdiction to execute the decree and the sale was void. The executing Court accepted that contention and declared the sale in favour of the appellant void. The appellant and the decree-holder appealed to the District Court; their appeal was dismissed. The present matter is the appellant's second appeal from that dismissal.
Legal Issues Presented
- Whether a sale held by the Collector in execution of a decree (after papers were transmitted by the executing Court) is void for want of a prior notice issued by the Court under Order 21, Rule 22, Civil P.C., where the darkhast for execution was filed more than two years after the decree.
- Whether the object of Order 21, Rule 22 — namely, to give the judgment-debtor an opportunity to show cause and satisfy the decree before execution — is satisfied (and thus the formal requirement waived) where the judgment-debtor actually receives notice from the Collector, appears before the Collector, participates in proceedings (including claiming statutory relief such as under the Bombay Small Holders Relief Act), and has opportunities to contend against the sale.
- Whether participation by a judgment-debtor in proceedings before the Collector (as opposed to the Court) can constitute waiver of the formal Court notice required by Order 21, Rule 22.
Arguments of the Parties
Judgment-Debtor's (Respondent 1) Arguments
- The judgment-debtor contended that because a notice under Order 21, Rule 22 had not been issued by the executing Court before the Collector was asked to sell the property, the executing Court lacked jurisdiction to execute the decree and consequently the sale of the suit property was null and void.
- Before the Collector he also asserted entitlement to relief under the Bombay Small Holders Relief Act and sought time to satisfy the decree — factual conduct relied on in the opinion but not offered by the judgment-debtor as a legal concession to cure any procedural defect.
Argument Raised by Mr. Kamik (as recorded)
- Mr. Kamik sought to distinguish the present case from the Calcutta High Court decision (AIR 1931 Cal 476) on the ground that in the present case the sale was held by the Collector (not by the Court) and the notice which induced the judgment-debtor to appear was given by the Collector rather than by the Court. He argued this difference mattered to the legal effect of the appearance before the Collector in relation to O.21, R.22.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Raghunath Das v. Sundar Das, AIR 1914 PC 129 | Held that where a sale was held without issue of a notice under the old code section corresponding to Order 21, Rule 22, the sale was void; a notice under the rule is necessary for the Court to obtain jurisdiction to sell. | The opinion records this as the authority for the strict view that lack of a formal court notice renders the sale void. The Court considered this view but treated it as one side of the authority to be weighed against later decisions that allowed waiver where the debtor had actual opportunity to be heard. |
| Rajagopala Ayyar v. Ramanujachariar, A.I.R. 1924 Mad 431 (Full Bench) | Full Bench endorsed the strict principle that a notice under the corresponding provision is required for jurisdiction to execute by sale. | Noted by the Court as aligning with the strict approach of Raghunath Das; the opinion acknowledges this authority but also places it in context with later cases that adopt a more pragmatic approach. |
| Chandra Nath v. Nabadwip Chandra, A.I.R. 1931 Cal 476 | Recognised that where judgment-debtors actually appear in execution proceedings (even when no formal O.21, R.22 notice was issued), and raise objections, the purpose of the rule is satisfied and execution may proceed; the strict logic of Raghunath Das need not be pushed to a rigid extreme. | The Court relied on this decision (Rankin C.J.'s reasoning) to support the proposition that actual participation and opportunity to oppose execution can constitute compliance with the protective object of O.21, R.22; the Court followed the reasoning that appearance and active participation may amount to waiver of the formal notice requirement. |
| Fakhrul Islam v. Bhubaneshwari Kuer, AIR 1929 Pat 79 | Where a notice under O.21, R.22 had been issued but not served, the fact that the judgment-debtor appeared and contested execution satisfied the Rule's purpose; Rule 22 requires only that an opportunity to show cause be given. | The Court invoked this case to support the view that the substantive object of Rule 22 (an opportunity to be heard) is the critical requirement; where that object is achieved, the technical failure to issue or serve a formal notice does not defeat execution. |
| Shiyali Chetti v. Valjee Kanjee and Co., AIR 1936 Mad 99 | Adopted the principle that participation/awareness by the judgment-debtor can preclude later objection based on want of formal O.21, R.22 notice. | The opinion records that the Madras High Court followed the line of cases favouring waiver/actual opportunity; the present Court treats it as supporting authority for that approach. |
| Ladli Parshad v. Chaman Lal, AIR 1939 Lah 473 | Followed the view that where the judgment-debtor was aware of proceedings and participated, he could not later challenge the sale on ground of absence of formal O.21, R.22 notice. | Noted as another authority adopting the practical/waiver approach; used to show consistency across jurisdictions. |
| Bimalanandhan v. United Refineries, AIR 1933 Rang 52 | Held that where the judgment-debtor was fully aware of the steps taken for sale, he could not later challenge the sale for lack of a formal O.21, R.22 notice. | Cited as supporting the principle that conduct which shows awareness and participation disbars subsequent challenge on the technical ground of absent formal notice; the Court relied on this reasoning. |
| Anil Kumar v. Ahammed Ali, AIR 1940 Cal 23 | Held that a judgment-debtor who appeared and repeatedly sought adjournments of the sale with knowledge of it cannot later plead want of notice under O.21, R.22 to set the sale aside. | The opinion uses this decision to reinforce the proposition that active participation in execution proceedings equates to waiver of a formal notice under O.21, R.22. |
Court's Reasoning and Analysis
The Court's analysis proceeds from a statutory and purposive reading of Order 21, Rule 22, Civil P.C., as reflected in the cited authorities. The opinion explains and applies the following steps of reasoning:
- Identification of statutory purpose: The Court recognizes that Order 21, Rule 22 was enacted for the protection and benefit of judgment-debtors, to ensure they have an opportunity to show cause and to prevent a "snap" execution against them or their estate.
- Survey of conflicting authorities: The Court summarizes the strict position (as in Raghunath Das and the Madras Full Bench) that a court-ordered notice under the rule is a jurisdictional prerequisite and absence of such notice renders any sale void; it then contrasts this with a line of authorities (Calcutta, Patna, Madras, Lahore, Rangoon, etc.) that adopt a more pragmatic approach.
- Principle of substance over form: The Court adopts the view, supported by Chandra Nath (Calcutta) and Fakhrul Islam (Patna), that the essential requirement of Rule 22 is that the judgment-debtor be given an opportunity to show cause against execution. If that substantive object is satisfied by actual knowledge, appearance and contesting of proceedings, then the failure to issue or serve a formal court notice does not necessarily invalidate a sale.
- Application to the facts: The Court finds on the facts that the judgment-debtor received notices from the Collector, was fully aware of the execution proceedings, appeared before the Collector on multiple occasions, claimed relief under the Bombay Small Holders Relief Act, and obtained time to pay. The Court reasons that these facts show the debtor had the substantive opportunity which Rule 22 intends to secure.
- On waiver and conduct: The Court holds that because the judgment-debtor actually participated in the proceedings and did not raise, before the Collector or by an application to the Court, the specific objection that no court notice under O.21, R.22 had been issued, he must be deemed to have waived that formal notice. The Court rejects the contention that participation before the Collector (as opposed to before the Court) makes a material difference: actual awareness and ability to object are decisive.
- Conclusion of law applied to remedy: On this basis, the Court concludes that the sale conducted by the Collector in January 1944 was not illegal for want of a prior formal notice under O.21, R.22 and that the executing Court's order declaring the sale void was incorrect.
Holding and Implications
Holding: The Court held that the sale of the suit property held by the Collector in January 1944 was not illegal and that the executing Court's order (dated 7-1-1948) holding the sale to be void was set aside. The application by the judgment-debtor (respondent 1) for setting aside the sale was dismissed with costs, and the executing Court was directed to proceed further with the darkhast in accordance with law.
Implications:
- Direct effect: The decision restores the Collector's sale in favour of the appellant and directs continuation of execution proceedings; the judgment-debtor's challenge to the sale for want of a formal Court notice under Order 21, Rule 22 was rejected.
- Doctrinal implication as applied by this Court: The opinion aligns with a strand of authority holding that the substantive object of O.21, R.22 is to afford an opportunity to the judgment-debtor to show cause, and where that opportunity is in practice given (even via notices and participation before the Collector) the formal failure to issue a Court notice will not invalidate the sale. The Court expressly endorses waiver by conduct where the debtor has actual knowledge and participates.
- Scope: The opinion applies existing case law and principles to the facts; it does not state that it is establishing a novel broad precedent beyond applying and preferring the line of authorities that emphasize substance over procedural form in this context.
Advocates recorded in the opinion: For appellant/petitioner/plaintiff: K.R. Bengeri, Adv.; For respondents/defendant: S.G. Karnik and C.K. Bengeri, Advs.
Raghunath Das v. Sundar Das, AIR 1914 PC 129, 41 Ind App 251 42 Cal 72 (PC); Rajagopala Ayyar v. Ramanujachariar, A.I.R. 1924 Mad 431, 47 Mad 288; Chandra Nath v. Nabadwip Chandra, A.I.R. 1931 Cal 476, 131 Ind Cas 702; Fakhrul Islam v. Bhubaneshwari Kuer, AIR 1929 Pat 79, 7 Pat 790; Shiyali Chetti v. Valjee Kanjee and Co., AIR 1936 Mad 99, 159 Ind Cas 762; Ladli Parshad v. Chaman Lal, AIR 1939 Lah 437, 21 Lah 231; Bimalanandhan v. United Refineries, AIR 1933 Rang 52, 11 Rang 79; Anil Kumar v. Ahammed Ali, AIR 1940 Cal 23, 187 Ind Cas 121
Advocate Appeared :
For Appellant/Petitioner/Plaintiff: K.R Bengeri, Adv.
For Respondents/Defendant: S.G. Karnik and C.K. Bengeri, Advs.
Chainani, J.
1. The material facts, so far as this appeal is concerned, are these. In 1939 respondent 3 filed a suit against respondents 1 and 2 for possession of the suit property which he had previously purchased. A consent decree was passed in that suit on 24-1-1941. By the compromise, respondent 3 gave up his claim to the suit land, while respondent 1, who it appears was the contesting defendant, agreed to pay him a sum of Rs. 125 ana interest thereupon in four equal instalments, the first instalment being payable in December 1941. The decree placed a charge on the suit property and provided that in case of default in the payment of any instalment, respondent 3 could recover the amount by sale of the suit property. As the first two instalments, which fell due in December 1941 and December 1942, were not paid, respondent 3 filed a darkhast for recovering the amount of these instalments by sale of the suit property.
This darkhast was filed on 12-4-1943, that is, more than two years after the date of the decree. Order 21, Rule 22, Civil P. C., provides:
"Where an application for execution is made morethan two years after the date of 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 ...... why the decree should not be executed against him."
No such notice was issued to the judgment-debtors, respondents 1 and 2. The Court passed an order that a sufficient part of the suit property should be sold, and transferred the papers to the Collector for carrying out the sale.
The Collector issued notices to the Judgment-debtors. Respondent 1, judgment-debtor 1, (referred to hereafter as the judgment-debtor), appeared and claimed the benefit of the Bombay Small Holders Belief Act, which was then in force. He was given time to pay the amount due from him, but as he did not do so, the property was put up for sale and sold on 12-1-1944, after duo notice to him. It was purchased by the present appellant for Rs. 170.
Thereafter the judgment-debtor again applied to the Collector to give him the benefit of the Small Holders Belief Act. The Collector gave him further time to deposit the amount due, but he failed to do so. The judgment-debtor then filed a suit for a declaration that the sale in favour of the appellant was illegal and not binding upon him. This suit was dismissed for default on 24-7-1945. The judgment-debtor made an application for setting aside the order of dismissal and restoring the suit to file, but that application was rejected on 3-12-1945. The sale was confirmed by the Collector on 29-10-1945, who then sent the papers to the Court for further action.
In the meantime, the remaining two instalments due under the decree had become due. The decree-holder, respondent 3, applied for an amendment of the darkhast, by which he sought to execute the decree for recovery of the amount of these Instalments also. The executing Court then issued a notice under Order 21, Rule 22, to the judgment-debtor. He appeared and contended that as notice under Order 21, Rule 22, had not been issued before the Collector was asked to sell the property, the Court had no jurisdiction to execute the decree, and that consequently the sale of the suit property was null and void. This contention was accepted by the Court, which accordingly declared the sale held in favour of the appellant to be void. The appellant and the decree-holder, respondent 3, appealed to the District Court, but their appeal was dismissed. The appellant has now filed a second appeal.
2. In -- Raghunath Das v. Sundar Das, AIR 1914 PC 129 (A) the Privv Council held that where a sale was held without the issue of a notice under section 248 of the old code, which corresponded to Order 21. Rule 22 of the present Civil P. C., the sale was void; see also the Full Bench decision of the Madras High Court in -- Rajagopala Ayyar v. Ramanujachariar, A. I. B. 1924 Mad 431 (FB) (B). The view taken in these cases was that a notice under this rule is necessary in order that the Court should obtain jurisdiction to sell the property in execution.
Baghunath Das v. Sundar Das (A), was considered by the Calcutta High Court in -- Chandra Nath v. Nabadwip Chandra, A. I. R. 1931 Cal 476 (C). In that case no notice under Order 21, Rule 22, was issued to the judgment-debtors, but a notice under Order 21, Rule 66, was issued to them. The judgment-debtors appeared and raised objections to the valuation of the property, which was to be mentioned in the proclamation of sale. After these objections had been disposed of, the judgment-debtors contended that the sale could not proceed, because no notice under Order 21 Rule 22, had been given to them. This objection was overruled and the execution was allowed to proceed.
in his judgment Rankin C. J. stated that it was (p. 477)
"quite unnecessary to push the abstract logic of the case of -- Raghunath Das Sunder Das, (A) to this ridiculous extreme."
He relied on the decision of the Patna High Court in -- Fakhral Islam v. Bhubaneshwari Kuer, AIR 1929 Pat 79 (D) and went on to observe (p. 478):
". .It appears to me to be merely piling unreason upon technicality to hold upon the circumstances of this case that it is open to the judgment-debtors on these grounds to object to the jurisdiction of the Court because they have not got a formal notice to do something, namely to dispute the execution of the decree when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years. I decline to push the doctrine so far as that and it seems to me that the execution should proceed."
In Fakhrul Islams case (D) a notice under Order 21, Rule 22, had been issued, but not served upon the judgment-debtor. The judgment debtor appeared and contested the execution. It was held that all that Rule 22 requires is that an opportunity should be given to the judgment-debtor to show cause why execution should not proceed, and as this object had been achieved, the Court had jurisdiction to hold the sale. These cases were followed by the Madras High Court in -- Shiyali Ohetti v. Valjee Kanjee and Co., AIR 1936 Mad 99 (E) and the Lahore High Court in --Ladli Parshad v. Chaman Lal, AIR 1939 Lah 473 (F), The Rangoon High Court has taken the same view in -- Bimalanandhan v. United Refineries, AIR 1933 Bang 52 (G). In that case the judgment-debtor was fully aware of the steps that had been taken in connection with the sale, it was held that he could not subsequently challenge the sale, on the ground that no notice under Order 21, Rule 22, had been issued, in his judgment, Page C. J. observed (p. 54) :
"..It is to be borne in mind that Order 21, Rule 22, was enacted solely in aid of judgment-debtors and their legal representatives, and to prevent a snap order being obtained for execution against a judgment-debtor or his estate. Now, when a statute or statutory rule is enacted granting a privilege to a particular person or class of persons, it may be, as in the case of the contractual incapacity of infante under the Infants Relief Act, 1874, that the statute or rule was enacted not merely for the benefit of the person or the class of persons to which it applies but upon grounds of public interest; and in such cases, no doubt, the parsons in whose favour the enactment works cannot be barred by their own conduct from invoking the aid of the statute or rule that has been passed in the interest of the public generally....
"In each case, however, regard must be had to the intention of the legislature in enacting the rule and in cases such as the present case, in Which a rule has been enacted solely for the protection of judgment-debtors and their estates, and not upon grounds of public policy or in the interest of the public generally, in my opinion it is clear both upon principle and authority that a person in whose favour the rule operates may by his conduct debar himself from the right of insisting upon its enforcement."
In --Anil Kumar v. Ahammed Ali, AIR 1940 Cal 23 (H) it was held that where the judgment- debtor has put in appearance and repeatedly asked for adjournment of the sale, obviously with the knowledge of the sale, he cannot plead want of notice under Order 21, Rule 22, for setting aside the sale.
3. The principle underlying these cases, with which we agree, is that even though a notice under Order 21, Rule 22, Civil P. C., which has been enacted for the benefit and protection of judgment-debtors, has not been issued to a judgment-debtor, if he actually appears in execution proceedings and raises various objections, the object of giving him a notice under Rule 22, which is to afford him an opportunity to show cause against execution and to satisfy the decree before execution issues, has been achieved, that if he does not then object to the execution on account of the failure to issue such a notice, he must be deemed to have waived the notice and that he cannot subsequently be allowed to challenge the sale on the ground that such notice had not been issued.
In this case, the judgment-debtor was given notices by the Collector. He was therefore, fully aware of the execution proceedings & had an opportunity to appear in these proceedings and object to the execution or to satisfy the decree. He actually appeared before the Collector more than once, claimed the benefit of the Bombay Small Holders Relief Act and also asked for and was given time to pay the amount due from him. The object of giving him a notice under Order 21, Rule 22, was, therefore, in fact achieved.
It is true that he did not appear before the Court but only before the Collector, but we do not think that that makes any difference. He raised certain objections, e.g. that he was entitled to the benefits, of the Bombay Small Holders Relief Act. He could also have objected, if necessary, by an application to the Court, to the sale being held without the issue of a notice to him under O. 21, R. 22. But he did not do so. It may, therefore, reasonably be presumed that he had no other contentions to raise. He must consequently be held to have waived the notice under the above rule and cannot now be heard to say that the sale is invalid for want of this notice.
4. We are, therefore, of the opinion that the sale of the suit property held by the Collector in January 1944 was not illegal. Accordingly we set aside the order passed by the executing Court on 7-1-1948, holding the sale to be void, which was confirmed in appeal by the Assistant Judge, and. dismiss the application made by the judgment-debtor respondent 1 for setting aside the sale with costs throughout, and direct that the executing Court should proceed further with the darkhast in accordance with law.
5. BAVDEKAR J. In my view, the case in AIR 1914 PC 129 (A) proceeds upon the principle that where notice under Order 21, Rule 22 is not served, jurisdiction is not conferred upon the executing Court merely by his being made aware of the proceedings, for example, in that case, by a notice issued to the Official Assignee to show cause why his name should not be substituted for the insolvent judgment-debtor in that case. Where, therefore, he took no notice of the proceedings and subsequently the property was sold, it was open to the transferee from the vendee to maintain a suit upon the footing that the execution sale was without jurisdiction.
6. On the other hand, the case of the Calcutta High Court in Am 1931 Cal 476 CO proceeds upon the principle that the object of giving a. notice under Order 21, Rule 22, is to give an opportunity of putting forward any objections which he may have to the execution proceedings. Where, therefore, even though no notice under Order 21, Rule 22, is issued or served, the judgment-debtor appears and takes part in the proceedings and raises objections if claims certain reliefs, to which he is entitled, for example, in this case, under the Bombay Small Holders Relief Act, it must be taken that he has waived the notice, and that if he raised no objections such as could be raised when a notice under Order 21, Rule 22, is served upon him, he had no such objections to urge. He cannot subsequently, when his other objections are disallowed and the sale is confirmed, turn round and say that the Court had no jurisdiction to hold the sale.
7. Mr. Kamik has sought to distinguish the present case from that of AIR 1931 Cal 476 (C) on the ground that in this case the sale was held not by the Court but by the Collector, and the notice in answer to which the judgment-debtor appeared before the Collector was also given by the Collector. But I fail to understand what difference that makes to the principle enunciated above.
8. Order accordingly.
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