Mahadeo Singh and Others vs Dhobi Singh and Another

Mullick, J.—It is quite clear that there is no second appeal in this case.

It appears that a previous application for execution was made one year after the decree and notice under Order 21 Rule 22 C.P.C. was duly served upon the surviving judgment-debtor. It appears that one of the Judgment-debtors was dead and notice was also served under Order 21 Rule 22 upon his legal representatives. In that execution a sale took place which was confirmed on the 15th June 1921. There was an appeal and the sale was set aside by the appellate Court on the 20th January 1919. The last application for execution was made on the 22nd December 1920 and the property was resold on the 16th March 1921. An application was then made to set aside the sale. The Munsif distressed the application and the Subordinate Judge in appeal affirmed his order on the 19th January 1923.

The present second appeal is preferred against the order of the Subordinate Judge.

It is clear that in so far as the application for setting aside the sale attacks the sale on the ground of irregularity in publishing and conducting the sale, no second appeal lies. The learned vakil for the appellant however urges that where a question as to the jurisdiction of the Court in consequence of failure to issue a notice under order 21 Rule 22 arises, the order of the execution Court is one u/s 47 of the CPC against which there is a second appeal. Now the question in this case is whether it was at all necessary for the execution Court to issue a notice under Rule 22 of Order 21. In my opinion it was not. The Rule in question requires the decree-holder to issue only one notice upon the judgment-debtor or his legal representative as the case may be; the proviso to the Rule makes this quite clear. The object of the Rule is merely to protect the judgment debtor or his legal representative from being lulled into a sense of security by the decree holder''s delay in executing his decree but once the original decree has been put into execution and a notice has been served under Rule 22 indicating his intention to proceed to execution, it does not seem to me that it is contemplated by Rule 22 that a fresh notice must be served for every execution application made more than one year after the last order against the judgment-debtor. This point therefore fails and the order of the executing Court cannot be regarded as one made u/s 47 of the Code. Therefore no second appeal lies.

On the merits also the appellants have no case. The lower Court has found as a fact that the sale proclamation was duly served. It has also found that the notice under Rule 66 of order 21 was duly served. It is objected that this notice gave the value of the property at the same figure as that which had been found to be inadequate in the proceedings in which the sale had been previously set a3ide. But the judgment debtor, as has been pointed out by the Munsif, had notice of the valuation and it was his duty to appear before the Court and assist the Court in arriving at a true and proper valuation. Not having done so the principle of estoppel operates against him. The learned Munsif has relied on Olpherts v. Mahabir Pershad Singh [1893] 9 Cal. 565 and Raja of Kalahasti v. Maharajah of Venkatagiri [1915] 38 Mad. 387. Both these are cases in point and in my opinion the judgment debtor is estopped from disputing the valuation.

The result is that the appeal is dismissed with costs.

Bucknill, J.

I agree.