Decided on March 30,1960

MOTANBAI Respondents

Referred Judgements :-



Modi, J. - (1.)THIS is an appeal by one of the judgment-debtors Mst. Mehtab Bai against an order refusing to set aside a sale under the provisions of O. 21 R. 90, C.P.C.
(2.)THE material facts leading up to this appeal may shortly be stated as follows. Respondent No. 1 Mist. Motan Bai obtained a mortgage decree against the appellant Mst. Mehtab Bai and respondent No. 3 Poonamchand in a suit for sale. THE said Poonamchand was admittedly a co-mortgagor. THE final decree was passed on the 22nd December, 1954. This Poonamchand was a natural-born son of the deceased Gulabchand, husband of Mst. Mehtab Bai, and has obviously been living at all material times in the house under mortgage. He has, however, been described in these proceedings as son of Jagannath, and it is admitted between the parties that the latter was the uncle of Gulab Chand. During the course of arguments in this Court, we have been told that Poonam Chand had been given in adoption to Jagannath; but this aspect of the matter was never brought in issue during these proceedings, and the decision of this appeal, in our opinion, does not turn on this circumstance. We have merely mentioned this in order to avoid all confusion later on.
The decree-holder applied for sale of the mortgaged house in execution of this decree. A notice under O. 21 R. 66 C.P.C. was ordered to be issued by an order of the Court dated the 12th April 1955, on both Mst. Mehtabbai and Poonamchand mortgagors. This notice was served personally on Poonamchand. But so far as Mst. Mehtab Bai was concerned, it was served by affixture on the outer-door of her house, and there is evidence on the record to show that Poonamchand and Mst. Mehtab Bai and another son of Mst. Mehtab Bai namely Premchand all lived in this house jointly. The service on Mst. Mehtab Bai was, therefore, considered to be sufficient by an order of the court dated the 2nd July, 1935, and a sale proclamation under O. 21 R. 66 C.P.C. was ordered to issue, and the sale was fixed in the first instance for the 5th, 6th and 7th September, 1955. It is not in dispute before us that the sale was stayed in connection with another suit which had meanwhile been instituted by one Padamchand (another son of Mst. Mehtab Bai) against Mst. Mehtab Bai and Poonamchand and the present decree-holder. The stay was subsequently removed, and, consequently, by an order of the court dated the 20tb November 1957, fresh proclamation was ordered to issue, and the sale was fixed for the 20th to 22nd January, 1958. The dates for sale were subsequently extended and the sale was eventually knocked down in favour of respondent No. 2 Dwarkadas for a sum of Rs. 27,800/- on the 13th February, 1958. This sale was confirmed on the 17th October. 1959. Meanwhile two applications were filed one by Mst. Mehtab Bai and the other by Poonamchand under O. 21 R. 90 C.P.C. for setting aside the aforesaid sale. The sale was attacked on number of grounds; but it is enough to mention three of them as these are the only grounds which have been pressed before us. The first is that the sale proclamation was not signed by the learned District Judge himself who was the presiding officer of the court but by his Munsarim, and, therefore, the sale was entirely void and illegal. The second is that the notice under O. 21 R. 66 was not properly served on Mst. Mehtab Bai, and, therefore, the terms mentioned in the sale proclamation never properly settled and the learned District Judge had not applied his mind to them. The third objection is really an offshoot of the second, and it is contended that no proper estimated value of the property under sale or the rental value thereof was mentioned in the sale proclamation. It was, therefore, contended that the house in question which was really worth sixty to sixty-five thousand rupees had been sold only for Rs. 27800/-, and thereby a substantial loss was caused to the judgment-debtors.

These objections were traversed by the decree-holder as well as the auction-purchaser, and the learned District Judge, after recording the evidence of the parties, eventually came to the conclusion that the objectors had failed to substantiate the grounds raised by them and in any event it had not been proved that a substantial injury had been caused to them, and in this view of the matter the objections were dismissed. One of the judgment-debtors, namely, Mst. Mehtab Bai has consequently come up in appeal to this Court.

The same grounds which were urged before the court below have been repeated before us. Now we propose to deal with the second ground first, namely, whether the notice on Mst. Mehtab Bai under O. 21, R. 66 had been properly served on her. There is material on the record to show that Mst. Mehtab Bai is a Pardanashin woman, and it was on this account that an application had been moved on behalf of her in the court below that she should be examined by commission. As already stated, the notices under O. 21, R. 66 were ordered to be issued on the 12th April 1955, for the 2nd July, 1955. Mohammed Yasin was the process-server who took the notice to serve on Mst. Mehtab Bai.. We have his report dated the 23rd June, 1955, to the effect that he had been to Mst. Mehtab Bai's house on the 2nd, 6th and 13th June, 1955, and on his inquiries he was told that she had gone elsewhere to her relations, and that it was not known when she would return. It is mentioned in the report that the process-server was accompanied by the. Mukhtar-i-am of the decree-holder when he went to serve the notice. It is further mentioned that on the last-mentioned date, namely, the 13th June, 1955, the process-server met Poonamchand, the other judgment-debtor and natural-born son of the appellant. The former wanted to give the summons to Poonamchand but he refused to accept it. Therefore, he went again on the 15th June, 1955, to Mst Mehtab Bat's house and he again made an effort to serve the notice personally on her but she was not available and some body from inside the house gave the reply that she had gone elsewhere, and it was in these circumstances, according to the process-server, that he affixed a copy of the notice on the house of Mst. Mehtab Bai, which was called Poonam Bhawan. This report was attested by two persons, named. Roopchand and Badrilal. There is also an endorsement on the notice under the signature of Dhoopchand, Mukhtar-i-am of Mst. Motan Bai decree-holder that he had accompanied the process-server a number of times in connection with the service of the notice on Mst. Mehtab Bai; but every time they went they were told by Poonamchand and Premchand sons of Mehtab Bai that she was not there, and, therefore, he requested the process-server that service be effected by affixture.. The process-server was examined as a witness on behalf of the decree-holder as D. W.3. He has corroborated this report.

It is strenuously contended by learned counsel for the appellant that this service on Mst. Mehtab Bai was not sufficient in law, the reason alleged being that the process-server should have used due and reasonable diligence in order to effect a personal service on Mst. Mehtab Bai, and that if he had done so, there should have been no difficulty in getting the service effected personally on her. It is true that, broadly speaking, service to be effective must be made personally on the person concerned. The difficulty arose in this case, however, because the person to be served, viz., Mst. Mehtab Bai, was a woman and a Pardanashin woman at that, and a personal service on a person of this type was not easy if the person concerned or those interested in her were so minded. The question in these circumstances is whether the kind of service that was effected on her namely, by the affixture of the notice on the outer wall of her house, should he held to be sufficient, as it was indeed so held by the learned District Judge. We may in this connection draw attention to the provisions contained in O. 5 rules 15 and 17 C. P. C. Rule 15 provides that - "Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him." It is nobody's case that Mst. Mehtab Bai had any agent empowered to accept any service in the present case. Therefore, a service on Poonamchand or Premchand, her sons, who were residing with her, if effected on them should have been good service, and in such a case it would not have been open to Mst. Mehtab Bai to say that no personal service had been effected on her. Unfortunately, however, Poonamchand and Premchand refused to accept service. In these circumstances, we are further of opinion that O. 5 R. 17 is clearly attracted into application because in such a case it may be reasonably predicated of a Pardanashin woman sought to be served with a notice that the process-server was not able to find her in spite of having used all his due and reasonable diligence, and, where this is so, this rule clearly lays down that the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the person to be served ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which is was issued with a report that he had so affixed the copy, mentioning the circumstances under which he did so, and the names and addresses of the persons in whose presence the copy was so affixed.

Thus it was held in Khiroda Sundari Dasi vs. Nabin Chandra Saha (1), that where either by reason of the custom of the country or for any other reason it is impossible for the serving officer to obtain access to the person to be served, such a case may, without undue stretch of language, be held to be covered by the expression "where the defendant cannot be found by the serving officer" occurring in O. 5 R. 17. It was further held that in such a case, a valid service is effected on a Pardanashin woman when the serving officer affixes a copy of the summons on the outer door or some other conspicuous part of the house in which she ordinarily resides. This would of course be subject to the further condition that such a woman has no agent duly empowered by her to accept service on her behalf and has also no adult male member in her family upon whom service may be effected.

The same view was taken in Haidari Khanam vs. Husnara Begum (2) wherein it was held that as it was not always practicable to effect personal service of a notice on a Pardanashin woma|n, the affixture there at the residence of the woman, may be taken to be sufficient service.

The same view was taken in Najmunissa vs. Jagmohan (3).

(3.)LEARNED counsel for the appellant drew our attention to Tripura Modern Bank vs. Bansen & Co. (4). In this connection ; but in so far as this case is relevant for our present purpose, it will be seen that the law laid down there is founded on O. 5, R. 17 as amended by the Calcutta High Court and in this very authority reference has been made at p. 788 to Khiroda Sunduri vs. Nabin Chandra (1) wherein the view was taken that where the defendants were Pardanashin Hindu ladies to whom the peons could not possibly get access, the provision of O. 5, R. 17 were satisfied inasmuch as it would be said with respect to them that the serving officer could not find them 'after using all due and reasonable diligence'. This was the law laid down with reference to Rr. 17 of O. 5, as it stood before the amendment, and as it stands so far as we are concerned.
Haying regard to this view of the case law, we have arrived at the conclusion that the notice under O. 21, R. 66 C.P.C. was properly served on Mst. Mehtab Bai the appellant.

We may also point out in this connection that according to the process server Mohammed Yasin, when in spite of all efforts, he could not obtain access to Mst. Mehtab Bai, he had offered the notices to her son Poonamchand, and that the latter had declined to accept the same, and it is worthy of note in this connection that when Poonamchand came into the witness-box, he said nothing in his deposition to controvert this part of Mohammed Yasin's statement. We are fully satisfied, therefore, that by the combined operation of rules 15 and 17 of O. 5, the service on Mst. Mehtab Bai was perfectly proper in this case, and consequently we over-rule this contention of learned counsel for the appellant.

This brings us to the first contention raised on behalf of the appellant as to whether the learned District Judge had himself settled the terms of the sale-proclamation or applied his mind thereto, and, further, whether the said proclamation was lawful and proper inasmuch as it had been signed by the Munsarim of the court and not by the lear-ned District Judge himself. So far as this aspect of the case is concerned, it is well to beat in mind that it was by an order of the 12th April, 1955, that the learned District Judge, had directed notice under O. 21, R. 66 to issue against the appellant, and by the same order he had called upon the decree-holder respondent to notify to the court the terms for the sale-proclamation. These terms were accordingly intimated to the court by the decree-holder by an application dated the 29th April, 1955. It was thereafter on the 2nd July,-1955, when counsel for the decree-holder was present in court and no body put in appearance on behalf of any of the judgment-debtors in compliance with the notices of the court which, as we have held above, were duly served on both the judgment-debtors, that the court ordered that the sale-proclamation do issue and the sale was fixed for the 5th to 7th September, 1955, at 10 A.M.


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