BABUBHAI KARIMBHAI JASANI Vs. VORA DAUDJI AMIJI SINCE DECD

JUDGEMENT

(1.) The question involved in both these appeals is whether the want of notice to Judgment-debtor under sub-Rule (2) of Rule 66 of O. 21 C. P. Code amounts to material irregularity in publishing or conducting sale within the meaning of Rule 90 Order 21 C. P. Code or whether it amounts to a jurisdictional error or any illegality vitiating the subsequent sale proceeding as void ab-initio.

(2.) Short facts of the case are that the appellant Babubhai Harilal Patni of Appeal No. 190/71 had filed a suit against the Respondent for recovery of mortgage amount. That suit ended in a preliminary decree against the said appellant on 17-3-1959. Final decree was thereafter passed on 3rd March 1967 for sale of the mortgaged property. Pursuant to this final decree the said appellant filed Darkhast No. 24/67 in the Court of Civil Judge (Jr. Division) at Lathi on 4th May 1967 for realising the amount of Rs. 7969-57 by selling the mortgaged property. On that Darkhast application the Executing Court passed an order of sale on the same day in the following words:-

(3.) The day before the actual sale took place i. e. on 26th June 1967 the Judgment-debtor who is the present Respondent filed an application to the Executing Court as found at Ex. 6. By this application he requested the Court to take the matter on board and on the same day he filed another application as found at Ex. 8 raising the contention that he was not served with any notice under O. 21 Rule 66(2) of the C. P. Code and therefore the execution could not proceed further. This application was kept on hearing on the next day i. e. on 27th June 1967. But on that day the Respondent Judgment-debtor did not appear before the Court with the result that the said application was dismissed for want of prosecution.