MANINDRA CHANDRA NANDI Vs. RAHATANNESSA BIBI

JUDGEMENT

(1.) This is an appeal by a decree-holder auction-purchaser, from an order setting aside an auction sale held in execution of a mortgage decree for sale. One of the judgment-debtors applied to set aside the sale under Order 21 Rule 90, Civil P.C., and Section 47, Civil P.C. So far as the application was under Order 21, Rule 90, Civil P.C., is concerned it has been held that the complaints of the applicant had no substance. As regards her application under Section 47, Civil P.C., it has been held that the notice under Order 21, Rule 22, Civil P.C., had not been served on her, and on that ground the sale has been set aside in its entirety. She is one of the heirs of one of the mortgagors, and it is said that her share in the properties is less than 5 pies and that of her father the mortgagor was 2 annas 9 pies.

(2.) The question which arises is whether the entire sale should be set aside or it should be held that the sale so held was invalid to the extent of applicant's share. This question has not, as far as we can see, been considered in any decision of this Court.

(3.) The Judicial Committee in the case of Raghunath Das V/s. Sunder Das Khetri A.I.R. 1914 P.C. 129 dealing with Section 248 of the Code of 1882 which corresponded to Order 22, Rule 1, Sub-rule (1) of the present Code, held, approving the decision of this Court in the case of Gopal Chandra Chatterji V/s. Gunodamani Dasi [1893] 20 Cal. 370 that a notice under Section 248 of the Code is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representatives of a deceased judgment-debtor.