(1.) THIS appeal in execution proceedings raises an interesting question as to whether if no notice under Order 21 Rule 66 (2) of the Code of Civil Procedure is served on the judgment-debtor, are the subsequent proceedings resulting in a sale void or voidable. Since on this question there is a conflict of opinion not only among the various High Courts in the country but even between the two learned Judges of this Court, the appeal has been referred to this Division Bench.
(2.) THE few facts giving rise to the appeal preferred by the heirs of the original decree-holder may be stated. A final decree for partition of joint family properties was passed on 25th of July 1962 in Special Civil Suit No. 77 of 1948 and under the decree inter alia, defendant No. 3 one Haribhau, was directed to pay Rs. 29,041. 85 to defendant No. 1 Ramchandra, Haribhau died on 21-7-1964 leaving behind him three sons, Gajanan, Shamrao and Anandrao (respondent No. 1 ). On 14-10-1964 the decree-holder Ramchandra filed an execution application, being Special Darkhast No. 85 of 1964 for realisation of the amount of Rupees 29041. 85 and certain immovable properties, being 1/2 share in three plots of land that had been allotted to deceased Haribhau under the decree, were got attached and the decree-holder prayed for sale of the same. On 26-4-1965 the executing Court ordered sale of attached properties under Order 21, Rule 64 and also directed a notice under Order 21, Rule 66 (2) being issued to the heirs of the deceased judgment-debtor Haribhau. Notices were admittedly served on Gajanan and Shamrao in July 1965 but there is a controversy whether it was served on Anandrao, the third son, (respondent No. 1) or not. However, the proclamation was settled by the Court on 18th November, 1965 and on 6th December, 1965 the Court issued warrant of sale and proclamation. Eventually the properties were sold by a public auction on 19-4-1968 and it was knocked down to respondent No. 2 as the highest bidder of Rs. 23,350/ -. On 16-5-1968 Gajanan and Shamrao filed an application being Misc. Application No. 111 of 1968 for setting aside the sale on certain grounds but that application was dismissed sometime in December, 1970. Thereafter on 24-3-1971, that is, nearly two years and eleven months after the auction sale had taken place. Anandrao (respondent No. 1) filed an application being Misc. Civil Application no. 61 of 1971 under Order 21, Rule 90 read with Section 47 of the Code of Civil Procedure for setting aside the sale on the ground that notice under Order 21, Rule 66 (2) had not been served upon him. Ramchandra having in the meantime died his heirs (the present appellants) opposed the application on the ground that notice under Order 21, Rule 66 (2) had been served on Anandrao and also on the ground that the application was barred by limitation. It was contended by them that assuming that notice under Order 21, Rule 66 (2) was not served upon Anandrao, it was a mere irregularity in publishing and conducting the same and as such the application fell under Order 21, Rule 90 and ought to have been filed within 30 days from the date of the auction under Art. 127 of the Limitation Act, 1963 and as it was filed more than 2 years and eleven months after the sale it was barred by time. The auction purchaser (respondent No. 2) also resisted the application and supported the contention of the heirs of the original decree-holder. Without deciding the factual question as to whether notice under Order 21, Rule 66 (2) had been served on respondent No. 1 or not, the executing Court decided the point of limitation as a preliminary point. Two decisions of this Court were cited before the learned Judge; one in the case of Dada Narayan v. Jaichand, 60 Bom LR 380 = (AIR 1958 Bom 278) which has taken the view that such sale without service of the notice under Order 21, Rule 66 (2) is null and void and that the application falls under Section 47 and would be governed by Art, 137 of the Limitation Act and the other in the case of Subderabai v. Moreshwar, 60 Bom LR 482 = (Air 1959 Bom 178) which has taken the view that non-service of notice under Order 21, Rule 66 (2) is a material irregularity and the applicant is required to set aside the sale by making an application under Order 21, Rule 90 and as such it is governed by Art, 127 of the Limitation Act. When these two decisions expressing rival views were pressed before him by either side the learned Judge felt that the point raised was a ticklish one but he preferred to follow the view expressed in 60 Bom LR 380 and he held that the application in question fell under Section 47 and so was within limitation under Art. 137 of the Limitation Act; he thereupon directed the parties to lead evidence on the factual aspect as to whether the notice had been served on Anandrao or not. Against this order passed by the learned Judge on 11th August, 1971 the heirs of the original decree-holder have come up on appeal to this Court.
(3.) WE have gone through the Misc. Civil Application No. 61 of 1971 preferred by respondent No. 1 to the executing Court on 24-3-1971 and we may state that the only ground on which the auction sale held on 19-4-1971 and we may state that the only ground on which the auction sale held on 19-4-1968 was sought to be set aside by him was that notice under Order 21, Rule 66 (2) was not served upon him, and both in the lower Court as well as before us the matter was argued on the assumption that notice under Order 21, Rule 66 (2) should be taken not to have been served upon respondent No. 1. Mr. Pendse appearing for the appellants has contended before us that the executing Court was in error in taking the view that the auction sale held on 19-4-1968 without service of notice under Order 21, Rule 66 (2) upon the judgment-debtor was null and void and that the application of respondent No. 1 fell under Section 47 of Code of Civil Procedure. He urged that the provisions of Order 21, Rule 66 (2) should be held to be directory and not mandatory and as such any breach thereof would be mere irregularity - and in a given case even a material irregularity - and not an illegality and a sale held by the executing Court without service of notice under Order 21, Rule 66 (2) upon the judgment-debtor would be a sale with jurisdiction though held irregularity and would be liable to be set aside upon proof of substantial injury under Order 21, Rule 90. He submitted that Section 47, which required all questions relating to the execution, discharge or satisfaction of a decree arising between the parties to the suit and their representatives should be decided by an application in execution and not by a separate suit, only covered such execution sales which were null and void ab initio, that is to say, sales held by the executing Court without jurisdiction and according to him, the several decisions which have been enlisted in Sir Dinshaw Mulla's Commentary under Section 47 clearly show that in all those cases the Court was concerned with sales held by executing Court without jurisdiction and which were therefore, void ab initio. In support of his contention that an application to set aside a sale on the ground of non-service of a notice under Order 21, Rule 66 (2) fell under Order 21, Rule 90 and as such was governed by Art, 127 he relied on the decision of Justice Miabhoy in Sunderbal Dalichand Shet v. Moreshwar Mahadeo Gokhale, 60 Bom LR 482 = (AIR 1959 Bom 178 ). He also pointed out that a similar view has been taken by the Madras High Court in two decisions in AIR 1920 Mad 481 and AIR 1956 Mad 231 and also by the Andhra Pradesh High Court in AIR 1957 Andh Pra 185 (FB) and by the Kerala High Court in AIR 1959 Ker 382 and AIR 1971 Ker 8 (FB ). He therefore, urged that the application preferred by respondent No. 1 to the executing Court will have to be regarded as having become barred by limitation, inasmuch as, it was not made within 30 days from the date of auction as required by Art, 127 of the Limitation Act. On the other hand Mr. Lalit appearing for respondent No. 1 contended that the provisions of Order 21, Rule 66 (2) should be held to be mandatory and a breach of such mandatory provisions must result in the subsequent proceedings including he sale being rendered null and void altogether, in which event, according to him, three would be no sale in the eye of law at all and there would be no question of the aggrieved party (judgment-debtor) being required to set aside the sale but the application would be for getting a declaration that the judgment-debtor's properties continue to belong to him notwithstanding the so called sale. He, therefore, urged that such an application would fall under Section 47 of the Code of Civil Procedure and would be governed by the residuary Art, 137 of the Limitation Act and since the present application of respondent No. 1 had been filed within 3 years from the date when a right to file the application accrued, the same would be within the limitation. Naturally in support of his contention Mr. Lalit has relied upon the view expressed by Justice Mudholkar in the case of 60 Bom LR 380 = (AIR 1958 Bom 278 ). He pointed out that Justice Mudholkar had followed in earlier decision of Justice Vivian Bose in Narayan v. Ramachandra, AIR 1948 Nag 177. He further pointed out that the learned Judges who decided those cases had given reasons for taking the view that the provision of Order 21, Rule 66 (2) regarding service of notice was a mandatory provision. Mr. Lalit also relied upon the decisions of the Madras, Punjab , Assam and Allahabad High Courts in AIR 1955 Mad 233, AIR 1961 Pandh 495, AIR 1956 Assam 21, Air 1937 All 407, respectively. According to Mr. Lalit, the question whether initially the executing Court possessed jurisdiction to hold an auction sale of attached properties or not is not very material, for, even if the Court had such jurisdiction if the provisions of Order 21, Rule 66 (2) were regarded as mandatory, - and he urged that they should be so regarded, any breach of such mandatory provisions would render the subsequent proceedings including the sale of properties a nullity and if the sale was null and void, the application would be governed by Section 47 and would, if filed within three years, be in time under Art, 137 of the Limitation Act.;