Munshi Shamsul Alam vs Official Liquidator of Sonar Bangla Bank Ltd.

P.N. Mookerjee, J.—This appeal is by the surety judgment-debtor and is directed against a concurrent order of the two Courts below rejecting, in substance; his objection to the execution, started by the decree-holder bank against the said surety.

In the view we are taking, it is not necessary to go into the facts in any great detail. Suffice it to say that in the first Court the objections of the surety judgment-debtor to the present execution, both on the question of irregularity for non-issue and non-service of notice under Order 21, Rule 22 of the Code and also on the ground of limitation were rejected, but relief was given to him as regards the amount under execution by limiting the execution only to the extent of his liability under the surety bond instead of the entire decretal dues and costs of execution as prayed for by the decree-holder. That order was affirmed in appeal by the learned Additional District Judge.

Before us, both the above points have been urged in support of this appeal, namely, the point of irregularity under Order 21, Rule 22 and also the point of limitation.

So far as the question under Order 21, Rule 22 is concerned, it appears that the Courts below held that there was in the instant case no issue of notice under Order 21, Rule 22 of the Code. Admittedly also, the instant execution, so far as the present Appellant is concerned, was started much beyond one year from the date when the said execution fell due. In the circumstances, notice under Order 21, Rule 22 ought to have been issued under the Code. The executing Court, however, held relying on Order 21, Rule 22, Sub-rule (3) that the non-issue of the notice in question would, at the most, amount to an irregularity and would not divest the executing Court of its jurisdiction to execute the decree. On appeal also, the same view was maintained. It appears, however, that if the execution was irregular, the irregularity had to be cured before the execution proceedings could be allowed to be proceeded with. It was not a challenge to the execution proceedings in a separate proceeding where the question of validity or invalidity of the execution alone would arise. In such a case Order 21, Rule 22, Sub-rule (3) would have been material, as in spite of the non-issue of such notice the proceedings would not have been without jurisdiction. In the instant case, however, the proceedings, were directly for execution of the decree in question and the point arose directly before the executing Court. In the circumstances, the irregularity cannot be ignored and the Courts below ought to have given effect to this objection of the judgment-debtor and ought to have directed execution to proceed only after issue and service of the requisite notice under Order 21, Rule 22 of the Code and decision of the questions which may arise thereupon. In this view, we would hold that the orders of the two Courts below, directing the present execution to proceed, cannot stand and the matter must go back to the executing Court for issue of notice under Order 21, Rule 22 on the present Appellant and proceeding, thereafter, with the execution in accordance with law.

On the question of limitation also, it appears that the relevant and proper materials have not been considered in the judgments of the two Courts below for deciding the point in favour of the decree-holder even u/s 450 of the Banking Companies Act, on which reliance was placed by them. As, however, the matter is going back to the executing Court for fresh consideration after issue and service of notice under Order 21, Rule 22 of the Code, it is unnecessary for us to say anything further on this point of limitation and the said point also will be considered by the said Court, if necessary, at the relevant stage in accordance with law.

The appeal is, accordingly, allowed as above, the impugned orders of the two Courts below are set aside and the case is remitted to the executing Court for proper, disposal in accordance with law in the light of the observations made in this judgment. If necessary, the executing Court will allow the parties to place further materials on record on the point of limitation.

There will be no order for costs in this appeal.

A.K. Dutt, J.

I agree.