Last Updated on
Ghose and Gordon, JJ.
1. This appeal arises out of an application made by the decree-holder on the 7th April 1892 for the purpose of executing a decree dated the 18th August 1888.
2. It appears that a previous application had been made by him for the same purpose on the 17th March 1881, upon which application an order was passed for a warrant of arrest against the judgment-debtor : but nothing further was done, and eventually the proceedings were struck off on the 17th April 1891. We may take it therefore that the last application by the decree-holder, and the last order that was made by the Court against the judgment-debtor, was on the 17th March 1891, and it follows that in accordance with the provisions of Section 248 of the Civil Procedure Code it was necessary to issue a notice calling upon the judgment-debtor to show cause why the decree should not be executed against him, before further proceedings could be taken upon the present application of the decree-holder, which, as already mentioned, was presented on the 7th April 1892.
3. It appears, however, that no such notice was issued upon this application being made, and certain moveable property belonging to the judgment-debtor was attached, and was advertised for sale on the 4th June 1892. On the 3rd June the judgment-debtor presented an application to the Court, stating that he had received no information before that date of the application by the decree-holder for executing the decree, and that the whole of the proceedings taken by him upon that application were entirely bad by reason of no notice having been issued upon him in terms of Section 248 of the Code. This objection, however, found no favour with the Court of First Instance, and the Munsif on the 3rd June 1892 rejected it. This was followed by the sale of the moveable property that had been advertised for sale; and at this sale, which took place on the 6th June 1892, a third party by name Palakdhari Singh became the purchaser.
4. The learned District Judge, upon appeal by the judgment-debtor against the order of the Munsif of the 3rd June 1892, has held, following two cases one of the Allahabad High Court, and the other of the Calcutta High Court that the whole of the proceedings taken by the decree-holder, commencing with the application of the 7th April 1892, are altogether bad, and therefore they ought to be set aside, inclusive of the sale of the 6th June, at which Palakdhari Singh became the purchaser.
5. The present appeal is by the decree-holder and the purchaser against the said order of the District Judge.
6. We must confess that the question raised upon the judgment of the District Judge is not altogether free from difficulty; but after due consideration, we are inclined to agree with him in holding that the whole of the proceedings taken by the decree-holder upon his application of the 7th April 1892 are altogether bad. It seems to us that in cases falling within Section 248 of the Code, the issue of a notice under that section is a condition precedent to the issue of a warrant for execution of the decree. This was the view that was adopted in Imamunnissa Bibi v. Liakat Husain I.L.R. 3 All. 424, and we observe that this Court also has in the case of Ramessuri Dassee v. Doorgadass Chatterjee I.L.R. 6 Cal. 103 taken the same view. No doubt, in the Calcutta case, as it was pointed out by the learned vakil for the appellant, the purchaser was the decree-holder himself, and not a third party; but as regards the question whether proceedings taken by a decree-holder without notice being issued to the judgment-debtor under Section 248 (where such notice is required), are bad in law, the principle of that case is applicable to the present case. That being so, it seems to us that the order made by the Court on the 7th April 1892 for attachment of the moveable property, and the subsequent order for sale, were of no effect whatsoever so as to bind the judgment-debtor. These orders were made in his absence, and could not therefore have any efficacy. No doubt, the sale took place after the petition of objection on the part of the judgment-debtor had been rejected on the 3rd June 1892, and before that order was set aside in appeal; but the purchaser Palakdhari Singh made his purchase with full notice of what the objection of the judgment-debtor was, and he must therefore be taken to have purchased subject to the result of the appeal. And as we are of opinion that the whole of the proceedings, commencing with the application of the 7th April 1892, are altogether bad by reason of no notice under Section 248 having been issued upon the judgment-debtor, and the judgment-debtor having had no opportunity to show cause why the decree should not be executed, it seems to us that the sale at which Palakdhari purchased the property cannot be sustained. The matter that has been complained of in this case is not one of irregularity but one of illegality, if we may say so, and if the whole of the proceedings were altogether bad and ineffectual so as to bind the judgment-debtor, it is obvious that anything done by the Court in the course of the execution that was taken out against the judgment-debtor must fall through.
7. Upon these grounds, we are of opinion that the order of the Lower Appellate Court ought to be sustained, and we dismiss this appeal with costs.