Shaikh Yakub Harunkhan Vs. Mahadev Narayan Prabhu Desai - Court Judgment

Rangnekar, J.

1. This appeal must fail. Mr. Desai takes a preliminary point, but I do not express any opinion on it. On the merits the appellants have no case. It appears that a decree for partition was made in this case and in execution of it one of the parties filed a darkhast. The decree was then more than one year old, but the learned Judge acting under sub-rule (2) of Rule 22 of Order XXI, Civil Procedure Code, dispensed with the issue of the notice required by sub-rule (1), He ordered execution to issue and sent the darkhast to the Collector for effecting partition. The Collector then issued notices to the parties, There is no dispute these notices were tendered to the appellants but were not accepted by them. This happened in March 1926. The Collector proceeded with partition and completed it in March 1928. In January 1929 the present appellants made an application to the learned Judge to set aside all the proceedings on the ground that the provisions of Order XXI, Rule 22, were not complied with inasmuch as the Judge did not record any reasons for dispensing with notices to the judgment-debtors. It appears that the case in the lower Courts proceeded upon the footing that no reasons were recorded by the learned Judge as required by sub-rule (2) for ordering execution to issue without issuing the notice prescribed by sub-rule (1). I have looked into the order which shows clearly that the learned Judge considered the application to dispense with notices on its merits, applied his mind to the facts before him, and stated, to use his own words, that there was no reason to issue notices to the opponents. In my opinion, that is a sufficient compliance with sub-rule (2) of Rule 22 of Order XXI.

2. The learned advocate for the appellants refers to Manmatha Nath Ghose v. Lachmi Debi I.L.R. (1927) Cal 96 and Rajagopala Ayyar v. Mama-nujachariar I.L.R. (1923) Mad. 288

3. Now in Manmatha Nath Ghose v. Lachmi Debi the contention was that no notice was in fact issued and not that the Court purporting to act under sub-rule (2) had made an order on the facts before it dispensing with the issue of a notice. The case, therefore, is no authority for the proposition that when a Court acting under sub-rule (2) has in fact dispensed with the issue of a notice, the mere fact that it has not recorded its reasons would vitiate the execution ordered to issue. The learned Judges followed the decision of a Full Bench of the Madras High Court in Rajagopala Ayyar v. Ramanujaehariar which is also relied upon by the appellants. In this case it was held that in a case where notice under Order XXI, Rule 22, Civil Procedure Code, has not been issued and the omission is due not to the fact that sub-rule (2) of Rule 22 has been applied, but to the fact that notice was not asked for, a sale held in execution is a nullity and not merely voidable but is void as against the person to whom notice should have been, but was not, issued. Schwabe C.J. commenced his judgment by observing that if the matters were free from authority he was inclined to the view that non-compliance with the provisions of Order XXI, Rule 22, was a material irregularity and not an illegality which would make a subsequent sale a nullity. In this case also no notice as required by sub-rule (1) was in fact issued and not, as here, in fact dispensed with, Commenting on an earlier decision of a Divisional Bench in Viswanatkan Ghetty v. Somasundaram Chetty I.L.R. (1921) Mad. 875 Schwabe C.J. observed as follows (p. 294):-

We think that the decision in Shyam Mandal v. Satinath Banarjee I.L.R. (1916) Cal. 954 is correct and that the ruling in Viswanathan Ghetty v. Somasundaram Chetty I.L.R. (1921) Mad. 875 has been too widely expressed. It may well be that, where an application has been made under sub rule (2) and the conditions contemplated by that sub-rule exist, the non-issue of notice without the recording of reasons would be a mere irregularity. But we are of opinion that when, as hero, it is not even suggest-ed that the conditions required by sub-rule (2) existed or were under the consideration of the Court), the Privy Council ruling in liaghunath Das v. Sunday Das Khetri I.L.R. (1914) Cal, 72 should be followed.

4. The decision in Viswanaihan Chetty v. Somasundarara Chetty was not expressly overruled by the Fall Bench. The Full Bench decision, however, clearly recognises the fact that under sub-rule (2) the Court has a discretion to dispense with a notice in a proper case. The learned Chief Justice observes as follows (p. 302) :-

In my judgment the only effect of this Sub-section is to give the Court jurisdiction in certain cases in which without it the Court would have none.

5. In Viswnnathan's case the Court held as follows:-

Omission to issue notice to the judgment-debtor under Order XXI, Rule 22 (1), Civil Procedure Code, is only a material irregularity in procedure and not an illegality affecting the jurisdiction of the Court in executing the decree.

The provision in Order XXI, Rule 22, sub-rule (8), requiring the Court to record reasons for not issuing notice under sub-rule (1), is only directory, and the omission to record reasons will not invalidate the proceedings in execution

6. It may, however, be pointed out that Ramesam J. who was a party to the decision in Viawanathan's case and also a party to the Full Bench decision, modified his earlier view, if I may say so with respect, in a somewhat half hearted manner. This is what he said (p. 307) :-

With no strong inclination in favour of any one of the three views stated above, and in order that our judgment may be unanimous, I would formally drop the conclusion I adopted in Viswanathan Chetty v. Somasnildaram Chetly and agree with my Lord and Waller, J., on the first question referred to the Bull Bench.

7. This change of opinion, however, is as regards the first point decided in Viswanathan's case and that appears from the questions raised by Ramesam J. in the Full Bench case. At page 305 he stated the questions as follows :-

Three possible views may be taken on the effect of want of notice under Order XXI, Rule 22 of the new Code-(the first being,)

(1) The want of notice is only an irregularity-This is the view taken by Oldfield, J., in Viswanaihan Chetty v. Somasundaram Chetty, and I agreed with his judgment

8. It may be pointed out that even in Viswanathan's case, the question as to whether the provision for recording reasons was mandatory and that failure to comply with it would vitiate an order made for execution to issue after dispensing with a notice required by sub-rule (I) did not directly arise for decision, The whole question in all the three cases was whether failure to issue a notice under sub-rule (1) was a material irregularity or an illegality. In Viswanathan's case it was argued that illegality was not established in view of sub-rule (2), the contention being that that sub-rule was applicable none the less, because the Court did not record its reasons for dispensing with the issue of notice, the provision for such reeord being directory, not mandatory. The argument, it seems to me with, respect, requires no answer to refute it as it implies that if no notice is in fact issued under sub-rule (1), and there is an order for issue of execution, it must be assumed that the order was made under sub-rule (2). The Court, however, considered the argument and laid down the second proposition to which I have referred. The proposition itself does not seem to me, if I may say so with respect, open to exception.

9. I have discussed these eases fully and they are not an authority for the proposition advanced by the appellants. The opinion of two Judges of the Madras High Court seems to be clearly against it, I have already held that the order in this case is a suicient compliance with the provisions of sub-rule (2). But even if it is not, the order for issue of execution under sub-rule (2) is valid and legal. Sub-rule (2) of Rule 22, Order XXI, is not, in my opinion, mandatory in its terms, and-the omission to record reasons for dispensing with notices is a mere irregularity which does not affect the validity of the order made, The appeal fails and must be dismissed with costs.