JUDGMENT
Das, J.
1. This is a miscellaneous second appeal by the judgment-debtors. The relevant facts he within a short compass.
The respondent-decree-holders obtained a decree for arrears of rent in 1941. This decree was put in execution and the holding of the judgment-debtors was sold and purchased by the decree-holders on 6-4-1943. The holding consisted of 17 kathas and 15 dhurs and was purchased for a consideration of Rs. 23-14-9, which was the decretal amount. On 29-8-1943, the respondent-decree-holders, it is stated, obtained delivery of possession.
On 9-10-1947, the judgment-debtors made an application for setting aside the sale on various grounds, one of which was that the decree was executed without jurisdiction. It was also alleged that all the processes in execution were fraudulently and deliberately suppressed and. property which was worth Rs. 2,000/- was sold for a grossly inadequate price. The judgment-debtors alleged that they came to know of the sale on 10-9-1947, and they filed the application within one month of the date of knowledge.
2. The learned Munsif who dea.lt with the application in the first instance held that no notice under Section 158B(2), Bihar Tenancy Act, was issued; the notice which purported to issue under Order 21, Rule 22, Civil P. C., was not served on the judgment-debtors; there was no compliance with the provisions of Section 163, Eibar Tenancy Act; the processes of attachment, sale proclamation and ‘dakhaldehani’ were not served on the spot; and the judgment-debtors came to know of trie sale on 10-9-1947. On these findings, the learned Munsil held that the sale was without jurisdiction; and that in any event, there was maienai irregularity and fraud in publishing and conducting the sale and the judgment-debtors had suffered material injury by reason of the irregularity and fraud. The learned Munsif held that the application was within time and accordingly he allowed the application with costs and set aside the sale.
3. There was an appeal to the learned District Judge. The Additional District Judge, who heard the appeal, reversed the finding of the learned Munsif on the question of limitation. The learned Additional District Judge held that the evidence of one of the judgment-debtors itself showed that he came to Know of the sale on 7th or 8th September 1947, and inasmuch as the application for setting aside the sale was filed on 9-10-1947 it was filed out oi time by two days.
The learned Additional District Judge further held that immediately after the auction purchase ana the delivery of possession, the respondent decree-holders had settled the land with a tenant named Rajkurnar Singh and that no notice of the application was given to Rajkumar Singh. The learned Additional District Judge held that in the absence of notice to Rajkumar Singh, the application for setting aside the sale was not maintainable.
The learned Additional District Judge affirmed, however, the other findings of the learned Munsif, namely, the finding that the property was grossly undervalued and sold for an inadequate price which caused substantial loss to the judgment-debtors and that the notice under Order 21, Rule 22, Civil P. C., and the processes in execution were not. served on the judgment-debtors.
In view of his finding on the question of limitation, the learned Additional District Judge allowed, the appeal and set aside the order of the learned Munsil.
4. A preliminary point has been taken on behalf of the respondent-decree-holders that no-second appeal lies. Learned counsel for the respondent decree-holders has referred to Section 153, Bihar Tenancy Act, and has contended that as the order on appeal was passed by the additional District Judge and the amount claimed in the suit did not exceed one hundred rupees, no appeal lies from the order of the Additional District Judge.
Alternatively, he has contended that even under the Code of Civil Procedure, there is no second appeal from an order passed on an application under Order 21, Rule 90.
Learned counsel for the appellants has met this preliminary point by stating that the application for setting aside the sale, though purporting to be under Order 21, Rule 90, Civil P. C., was really one under Section 47, Civil P. C., because the application was based on the plea that the execution of the decree was without jurisdiction inasmuch as no notice under Order 21, Rule 22 was served on the judgment-debtors and the judgment-debtors had no opportunity of objecting to the execution of the decree.
It is argued that it is now well settled that a notice under Section 158B(2) in respect of decrees for arrears of rent which are sought to be executed in accordance with the provisions of the Bihar Tenancy Act, or a notice under Order 21, Rule 22, Civil P. C., in respect of decrees for money sought to be realised in accordance with the provisions of the Civil Procedure Code, goes to the root of jurisdiction of the executing Court; and it is contended that if the executing court had no jurisdiction to execute the decree, a decision given, by the court on that question is really one under Section 47 and a second appeal will lie.
In my opinion the argument of learned counsel for the appellants is correct, and must prevail. It is necessary to stale, however, that Order 21, Rule 22, Civil P. C., was amended by this Court in May, 1947; the amendment was published in the Bihar Gazette on 14-5-1947, on which date it came into force. A new Sub-rule (3) was added which reads as follows :
“Proceedings held in execution of a decree shall not be invalid solely by reason of any omission to issue or failure to serve a notice under Sub-rule (1) or to record reasons where such notice is dispensed with under Sub-rule (2) unless the judgment-debtor has sustained substantial injury thereby.”
In — ‘Balmakund v. Ganesh Das’, AIR 1951 Pat 333 (A), there are certain observations in the judgment of Narayan, J. which appear to express the view that the new sub-rule inserted in May, 1947, has retrospective effect. However, his Lordship himself said that the decision of the case under consideration before his Lordship rested on other grounds, and the observations with regard to the retrospective effect of new Sub-rule (3) were in the nature of obiter dicta.
Imam, J. (now my Lord the Chief Justice), who agreed to the order that the appeal be dismissed in that case, specifically reserved his opinion on the effect of new Sub-rule (3) of Order 21, Rule 22, Civil P. C. In the case under our consideration, the sale took place on 6-4-1943, long before the amendment of 1947 and none of the parties before us contended that the amendment made in 1947 affected or validated the sale held in 1943. The appeal was argued before us on the footing that Order 21, Rule 22, as it stood before the amendment oi 1947, applied in the present case.
5. I would accordingly overrule the preliminary objection taken on behalf of the respondent decree-holders.
6. I come now to the merits of the appeal. It is not denied that in this case no notice under Section 158B(2), Bihar Tenancy Act, was issued.
It has been held by a Bench of this Court in — ‘Kameshwar Singh v. Bishwanath Jha’, AIR 1947 Pat 33 (B) that Section 158B(2) is a corresponding provision of Order 21, B. 22, Civil P. C., and the reason why under Section 148 (1), Bihar Tenancy Act, the notice under Order 21, Rule 22 has been dispensed with in rent executions is because a corresponding mandatory notice has been prescribed under Section 15SB(2), and failure to comply with that section would have the same consequence as failure to comply with the provisions of Order 21, Rule 22, in cases where that provision is applicable.
In — ‘Lachmi Narayan Lal v. Bhupendra Prasad Shukul’, AIR 1948 Pat 143 (C) it was pointed out, however, that where a notice under Order 21, Rule 22 was issued and served, the sale could not be a nullity or without jurisdiction; it would at least take effect as a money sale, that is to say, a sale of the right, title and interest of the judgment-debtor, because under Section 158AA, Bihar Tenancy Act, it is quite open to the decree-holder to elect whether he will proceed by way of rent execution against the tenure or holding itself or merely against the property of the judgment-debtor, and there will be nothing illegal in proceeding under the Code of Civil Procedure and issuing the notice under Order 21, Rule 22, the court in each case being the same.
The learned Munsif seemed to think that the respondent decree-holders in this case had elected to proceed by way of rent execution against the tenure or holding itself; I ao not think that the learned Munsif was light in that view. I proceed, therefore, to consider this appeal from a stand, point which is more favourable to the respondent decree-holders, namely, that they did proceed to execute the decree against the property oi the judgment-debtors under the provisions of the Code of Civil Procedure.
7. There is a concurrent finding of the courts below that the notice under Order 21, Rule 22, Civil P. C., was not served on the appellants. What is the effect of this non-service? This is the crucial question in this appeal.
The contention of learned counsel for the appellants is that total non-service or fraudulent suppression of the notice under Order 21, Rule 22, Civil P. C., goes to the root of the jurisdiction of the executing court and deprives that court of jurisdiction to execute the decree against the judgment-debtors. His contention is that the sale held in the absence of such jurisdiction is a nullity, so far as the judgment-debtors are concerned :
Learned counsel has distinguished the Full Bench decision in — ‘Ramlal Sanu v. Mt. Ramia’, AIR 1947 Pat 454 (D) on the ground that the question decided in that Pull Bench decision was that a mere irregularity in service did not make the sale wholly ineffective and void. In the Pull Bench decision, in which I happened to give the leading judgment, I made it penectly clear that the question of law which arose for decision in that case was the effect of an irregularity in the service of a notice under Order 21, Rule 22, Civil P. C., as distinct from failure to issue or want of such a notice.
It, is obvious that when Order 21, Rule 22, Civil P. C. states that 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, the object of the rule is to give the judgment-debtor an opportunity to object to the execution of the decree if he so desires. Order 48, Rule 2, Civil P. C., lays down, inter alia, that all notices required by the Code to be given to or served on any person shall be served in the manner provided for the service of summons.
Learned Counsel for the respondent decree-holders has contended, however, that the ratio of the Full Bench decision in — ‘AIR 1947 Pat 454 (D)’ goes beyond mere irregularity of service. He has particularly relied on my observations with regard to — ‘Durga Singh v. Sugambar Singh’, AIR 1941 Pat 481 (E) at page 458 of my judgment in — ‘AIR 1947 Pat 454 (FB) (D). After stating the facts of ‘Durga Singh’s case (E)’, I observed that ‘Durga Singh’s case (E)’, in so far as it lays down that an irregularity of service affects the jurisdiction of the court and makes the sale wholly ineffective, goes beyond the authority of — ‘Raghunath Das v. Sundar Das’, AIR 1914 PC 129 (F) which it purports to follow.
In ‘Durga Singh’s case (E)’ the finding was somewhat conflicting; one finding was that the service was improper, and another finding was that the notice was never served. In view of those conflicting findings, I made the observation that if the intention was to put irregularity of service on the same footing as want of service or non-service, then — ‘Durga Singh’s case (E)’ goes further than ‘Raghunath Das’s case (F)’. In an un-reported decision, Misc. S. A. No. 886 of 1946 (G), decided by a Bench of this Court on 6-5-1947, the question of non-service of notice under Order 21, Rule 22, Civil P. C., was specifically considered with refer- ence to the Full Bench decision in — ‘AIR 1947 Pat 454 (FB) (D). Manohar Lall, J. (as he then was) reviewed the decisions in — ‘AIR 1941 Pat 481 (E); — ‘AIR 1914 PC 129 (F); –‘Malkarjan v. Narhari’, 27 Ind App 216 (PC) (H) and observed :
“The relevant provision in Order 21, Rule 22 is that the court executing the decree shall issue a notice to the person against whom execution is applied tor requiring him to show cause on a date to be fixed that the decree should not be executed against him. It seems to me clear that the mere issue of a notice without it being served upon the judgment-debtor cannot meet the requirements of the rule as unless the notice is served upon him, how can he show cause? On the plain reading of the provision it is clear to me that Rule 22 requires not only issue of the notice but service upon the person before the Court gets jurisdiction to sell apart from jurisdiction to entertain and take other steps therein.”
Learned counsel for the respondent-decree-holders has argued that, the executing court must have accepted, rightly or wrongly, that the service of the notice under Order 21, Rule 22 was properly made, and even if it gave wrong decision, it had jurisdiction to proceed with the sale if it had come to the conclusion that the notice had been properly served.
This very argument was dealt with by Manohar Lall, J. (as he then was) in the following words :
“This argument would have been well-founded if the court directed its mind to the evidence in proof of service and then gave a finding, but as is well known these are routine orders written in the order-sheet. The orders are all ex parte and no evidence is taken beyond an affidavit in support of the report of the peon. The finding of fact in each case will determine the question as to whether notice was not only issued but served upon the judgment-debtor, and a distinction must always be drawn between non-service and irregular or improper service.”
8. The learned Additional District Judge has no doubt used the expression “notices and processes were not properly served”, but on a read-Ing of the entire judgment it is clear that he affirmed the finding of the learned Munsif who found that the notices under Order 21, Rule 22, Civil P. C., had not been served at all; rather he found that “there were strong indications to show that the peon had colluded with the decree-holder” and the notice had not been served on the judgment-debtors at all.
In view of this finding, learned counsel for the respondent-decree-holders can hardly call in aid the decision in — ‘AIR 1947 Pat 454 (FB) (D)’.
9. In my opinion, the learned Munsif rightly held that the sale was without jurisdiction because no notice under Order 21, Rule 22, Civil P. C., had been served on the judgment-debtors.
10. On the question of limitation, it appears to me that the learned Additional District Judge took an erroneous view of the legal position. The proper Article which would apply is Article 181, and the judgment-debtors would have three years from the date when the right to apply accrued. The finding of both the courts being that the processes in execution were fraudulently suppressed, the judgment-debtors did not know of the execution or the sale till the 7th or 8th September 1947. It is manifest that they filed the application within three years from that date.
The learned Additional District Judge applied Article 166 on the footing that the sale was with jurisdiction. Learned Counsel for the appellants has contended that even applying Article 166, the application was within time. He has pointed out that the evidence of one of the judgment-debtors, to which the learned Additional District Judge has referred, merely showed that the judgment-debtor came to know of the sale somewhat vaguely on the 7th or 3th of Bhado from one Devakant Jha. He then made enquiries and came to know definitely about the sale on the 10th of September, 1947. The judgment-debtor merely gave an approximate date when he mentioned the 7th or 8th of Bhado, and the learned Munsif rightly, in my opinion, did not attach much importance to that discrepancy.
It is unnecessary to pursue this matter any further as it is clear that Article 181 applied and the appellant had the right to file the application within three years from the date when the right to appiy accrued. As they were fraudulently kept out of knowledge of the execution and the sale, the date of knowledge was the date on which the right to apply accrued. The application was filed within 30 or 31 days from the date of knowledge and was clearly within time.
11. The only other point is about the failure to serve a notice on Rajkumar Singh. Rajkumar Singh, it appears, knew about the proceeding and actually appeared and was examined as a witness.
In — ‘Charu Chandra v. Behari Lal’, AIR 1925 Cal 157 (I) it has been pointed out that the object of Rule 92 insisting upon notice is to entitle every party interested to be heard; therefore, if a party has actual notice, the absence of formal notice does not vitiate the proceedings. Moreover, what the appellants were pleading in this case was that the executing court had no jurisdiction and the sale was nullity; if the sale was a nullity, then the auction-purchasers did not acquire any title as against the judgment-debtors, and a subsequent settlement by the decree-holder auction purchasers would confer no title on Rajkumar Singh.
12. For the reasons given above, I would allow the appeal with costs and set aside the decision of the learned Additional District Judge and restore that of the learned Munsif.
Imam, C.J.
13. I agree.
