Om Prakash - (1.) BY means of this writ petition, the petitioner who was judgment debtor seeks quashing of the orders dated 4th August, 1986 passed by respondent no. 2 (Annexure 1) and the order dated 20th August, 1981 passed by respondent no. 1 (Annexure 2) to the writ petition.
(2.) BRIEF facts are that house property belonging to the petitioner was sold in execution of the decree against him and then he filed objection under Order XXI Rule 92 CPC which was rejected by executing court by order Annexure 'I' and later by District Judge in appeal by order Annexure '2'. Aggrieved by the order of the District Judge, respondent no. 1, petitioner has come up before this Court. Sri Pathak, learned counsel for the petitioner make three submissions before me, (1) that no objection would be made in the sale proclamation, in-as-much as location of the property was forged ; (2) that the sale was confirmed on 23rd May, 1969 before the objections filed by the petitioner, were decided pursuant to the remand Order dated 4th September, 1970 passed by this Court; and (3) that no notice under Order XXI Rule 66 (2) was served on the petitioner before drawing sale proclamation. Upon perusal of the impugned order, Annexure 'I' passed by District Judge, it appears that the subject matter of the sale was situated in a locality known as Ghantaghar but subsequently by way of interpolation it was changed as Sundarghat. Sri Pathak learned counsel for the petitioner clearly states that the correct location of the house property was in Ghantaghar locality. From the finding of the District Judge, it is clear that when the sale proclamation was drawn, then correct locality was mentioned, but later on interpolation was made. The District Judge also observes that in the warrant of sale attached to the sale proclamation, property was shown as having been situated in Mohalla Ghantaghar. - Since the location of the property was correctly stated in Mohalla Ghantaghar when the sale proclamation was drawn, no prejudice would have been caused to the petitioner by subsequent interpolation in the record and, therefore, this objection is of no consequence. The position would have been otherwise had the location of the property been shown from inception in Mohalla Sundarghat.
(3.) THE second submission of Sri Pathak is that sale could not have been legally made absolute until order was passed by High Court, in revision earlier filed, which was decided by order dated 4th September, 1970. By the said order, copy of which is not filed, it is said that this court remanded the case with the direction that objections filed by the petitioner against the sale be disposed of. I do not agree with the submission in-as-much as no stay order was passed in revision by this Court for staying confirmation of sale. Unless a stay order was passed, executing court was free to confirm the sale. Confirmation of sale will not become invalid simply because this Court passed an order in revision on a subsequent date directing the executing court to dispose of the objections made against sale. The last submission is that no notice as contemplated under Order XXI rule 66 (2) was served upon the petitioner. Whether or not provisions contained in Rule 66 (2) of Order XXI is mandatory-opinions on this question by High Courts are divided. Whereas in Sundarabai Ram Chandra Rabade v. Anandrao Haribhau Rabade,-AIR 1973 Bombay 301, Bombay High Court having reviewed the previous decision has come to conclusion that word 'shall' in sub- rule (2) of Order 21 Rule 66 is not mandatory but only directory. So according to Bombay High Court non service of the notice upon the judgment debtor will only render the subsequent sale voidable at its instance and it could not be void, but Nagpur High Court in Narayan Purshottam v. Ramchandra Mudgalji, AIR 1948 Nagpur 177 took a contrary view. In Madappa v. Lingappa, AIR 1987 Karnataka 60, Karnataka High Court held on page 65 that non issuance or non service of the sale notice by itself may not be sufficient to render sale a nullity. If judgment debtor had knowledge of the execution proceeding and had an opportunity to participate in the execution proceeding, simply non issuance of the sale notice may not be sufficient to render sale a nullity.;