Agarwala, J.@mdashThis matter arises out of an application to set aside a sale held in execution of the decree passed in a suit for rent against Bhagbat Prasad, the father of the petitioner. Bhagbat Prasad died pending the disposal of the suit on 13th November 1935. Steps were taken to substitute in his place his sons who were described as minors and to appoint a guardian-ad-litem for the minors. The suit was eventually decreed and in due course execution was applied for on 23rd December 1936. Sale in execution of the decree was held on 4th April 1937, the purchaser of the property put up for sale being the uncle of the petitioner. On 15th September 1937, the petitioner applied to set aside the sale alleging that he had no notice of it until 8th September.
2. The Court below has disbelieved the petitioner''s allegation that he did not hear of the sale until 8th September. The Munsif set aside the sale and ordered the petitioner to deposit the decretal amount. This order was complied with on 31st January 1938. In appeal by the auction, purchaser against the order the Appellate Court held that there was no sufficient ground for setting aside the sale and confirmed it. The ground on which the petitioner challenged the sale was the absence of notice to him under Order 21, Rule 22, Civil P.C. The question that arises now is whether the application is barred by limitation. If the sale was void the period of limitation applicable is that prescribed by Article 181, Limitation Act of 1908: see Ramanand Ganpat v. Rakhal Mandal AIR (1936) Pat 496. If, on the other hand, the sale was not void but voidable the period of limitation applicable is that prescribed by Article 166, namely 30 days from the date of sale. As the petitioner''s application was more than five months from the date of sale it is necessary for him to show that the sale was a nullity in order that his application should succeed.
3. The petitioner attempts to do this by showing that the notice that was issued in this case under Order 21, Rule 22, was not issued to him but to the guardian-ad-litem who had been appointed in the suit on the death of his father. Reliance is placed on the decision of their Lordships in the Privy Council in Raghunath Das v. Sunder Das Khetri AIR (1914) PC 129 in which it was held that notice u/s 248, Civil P.C. of 1882 was the basis of the executing Court''s jurisdiction to proceed in execution. That decision has been dealt with by this Court in F.E. Chrestien v. Jaideo Prasad Rai AIR (1934) Pat 274 in which Dhavle J. pointed out that what the Privy Council in effect decided in Raghunath Das v. Sunder Das Khetri AIR (1914) PC 129 was that a former decision of the Calcutta High Court with reference to the provisions of Section 248 of the Code of 1882 was a correct decision; but Dhavle J. went on to point out that the law has been altered by the present Code of 1908, which, in Sub-rule 2 of Rule 22 has introduced a statutory exception to the general rule mentioned in the Privy Council decision.
4. The case before Dhavle and Macpherson JJ. was a case in which notice under Rule 22 had in fact been issued but the address of the person proceeded against had been incorrectly given with the result that notice had not been served in accordance with law, and the question was whether in these circumstances the sale was a nullity. It was held that where there was only an irregularity in the service of notice under Rule 22 the jurisdiction of the executing Court is not affected merely by reason of such irregularity and the sale held can be set aside only on proof of substantial loss to the judgment-debtor by reason of the irregularity.
A further limitation to the proposition that a sale is always void in the absence of a notice properly served under Rule 22 is indicated in Fakhrul Islam v. Bhubaneshwari Kuer AIR (1929) Pat 79. In that case a notice under Rule 22 bad been issued to the judgment-debtor but had not been served on him. In spite of this he appeared and contested the execution proceedings.
5. It was held that the omission to serve the notice did not render the sale void. In the present case a notice under Order 32, Rule 3 must be presumed to have been served on the petitioner at the time when the guardian ad litem for the minor sons of Bhagbat Prasad was appointed. The petitioner apparently did not object to the appointment of a guardian ad litem and permitted the Court to proceed as if he were in fact a minor although it appears that he had attained majority on 3rd March 1935, some eight months before the death of his father. The notice under Rule 22 was directed to the sons of Bhagbat Prasad under the guardianship of the guardian appointed by the Court. There was therefore a notice issued to the persons against whom execution was applied for as required by Rule 22 in its present form.
6. The fact that in the case of the petitioner it was not sent direct to him but to the guardian is due solely to the fact that the petitioner himself led the Court to believe that a notice so directed would be properly served as he held himself out to be a minor in the substitution proceedings.
In these circumstances I am not prepared to hold that there was any non-compliance with the provisions of Rule 22. The decision in Ramachari v. Duraisami Pillai, (1898) 21 Mad 167 is relevant to this point. There the managing member of a Hindu joint family consisting of himself and two minor brothers mortgaged ancestral property.
7. The mortgagee brought a suit on the mortgage joining the three brothers as defendants. The two younger brothers were sued through the elder brother as their guardian ad litem. A decree wa3 passed in the suit and the mortgaged lands were sold in execution. Thereafter the two younger brothers sued to have the decree and sale set aside on the ground that they had attained majority at the date of the suit and had accordingly been wrongly impleaded as minors. One of the two younger brothers was in fact a major at the date of the institution of the mortgage suit but it was found as a fact that he was aware of the suit and the execution proceedings and that he permitted his eldest brother to conduct the defence on his behalf.
8. In these circumstances it was held that both the younger brothers, who sued to set aside the mortgage decree and the sale held in execution of it, were, bound by the decree passed in the mortgage suit. That decision has been followed by the Madras High Court in K. Seshagiri Rao v. Tanguturi Jagannadham, AIR (1917) Mad 818. I would therefore dismiss this application with costs. Hearing fee two gold mohurs.
Rowland, J.
9. I agree.
