P L D 1966 Supreme Court 375 (PLP)

B. Z. KAIKAUS,. J.-On the merits the question to be decided in the proceedings out of which this appeal by special leave arises was whether the property, actually sold in execution of a mortgage decree for sale was the property covered by the decree. The relevant facts are the following. On the 12th December 1938, Muhammad Azim Khan and Mst. Akhtari Begum, widow of Qamar Din Khan executed a mortgage deed in favour of the New Bank of India for a. sum of Rs. 30,000 in respect of agricultural land in Kot Khawaja Saeed measuring 94 kanals and 10 marlas and a bungalow with orchard in Begumpura as in the plan attached. The original mortgagor had died before the suit for recovery of the mortgage money by sale of, the mortgaged property was filed by the New Bank of India on the 1st of February 1949, and it is the legal representatives of the mortgagor that were impleaded as defendants in the suit. On the 29th July 1954, a preliminary decree for sale was passed for a sum of Rs. 66,646-13-2 with costs and interest on the principal amount. On the 24th December 1954, this decree, was assigned by the New Bank of India to Haji Hussain Bakhsh respondent for a sum of Rs. 32,500: On the 9th of April 1956, a final decree was passed in favour of the respondent on the application of the respondent On the 21st May 1956, the respondent applied for sale of the mortgage property. He made an application at the same time under Order XXI, rule 66 of the Civil Procedure Code for the issue of notices to the judgment-debtors. Notices were sent under registered cover through the postal department and were returned to the Court with a report that the addressees had refused to accept them. On the date fixed for hearing the judgment-debtors failed to appear and considering the service of notices as sufficient, the Civil Judge directed that the property be sold. An auction of the property took place on the 31st August 1946, in which the respondent also participated as a bidder having obtained permission to do so from Court and his bid of Rs. 41,000 was accepted. Objections to the sale were filed by the appellants who are the legal representatives of the mortgagors on the 23rd November 1956. These objections were dismissed on the 26th March 1957, on a preliminary objection raised on behalf of the respondent that the petition of objections had not been signed and verified by the judgment-debtors and had not been presented by an authorised counsel. The appellants approached the High Court on the revision side. The order of dismissal of the objections was set aside by the High Court and the appellants were allowed to rectify the objection petition by adding proper signatures and verification. Some amended petitions were filed to which it is not necessary to make a detailed reference. Ultimately the Civil Judge who was hearing the case ordered on the 26th June 1959, that a consolidated amended petition subject to decree holder's plea of limitation be filed by the judgment-debtors. On the 3rd July 1959, a petition was put in praying that the sale be set aside as being illegal, irregular and void. One of the grounds and in fact the main ground of attack on the sale was that the property which was not included in the decree had been sold. On a reply having been filed to this application by the respondent a number of issues were raised, but we are concerned only with two of them, that is, issues relating to res judicata and limitation. The trial Court held on both points against the respondent and accepting the application set aside the sale. On appeal a learned Single Judge of the High Court held so far as res judicata is concerned that objections to the sale on the ground that property not included in the decree was sold should have been made before the sale and could not be made afterwards. In arriving at this conclusion the learned Judge purported to follow the Full Bench of the Lahore High Court reported as Gauri v. Ude (1) A I R 1942 Lah.153. So far as limitation is concerned the learned Single Judge held that it was Article 166 of the Limitation Act and not Article 181 that was applicable and that the objections were time-barred. We are concerned in this appeal with the questions of res judicata and limitation only. To take up first the question of res judicata it should be stated that the plea in the present case is based on the notice issued under Order XXI, rule 66 and the contents of the sale proclamation. The contention is that as notice was sent to judgment-debtors of the proposed sale, it was their duty to appear before the Court and raise objections as to the property which was to be mentioned in the sale proclamation and if they have failed to raise such an objection they are debarred from challenging the correctness of description of property in the proclamation of sale. The appellants have two objections to the applicability of res judicata:-- (i) they had never any notice of the fact that property different from the property actually covered by the decree was going to be sold; and (ii) proceedings under ,Order XXI, rule 66 are not judicial proceedings at all. It is an essential condition of res judicata that the party concerned should have had a proper opportunity of defending himself with respect to the matter involved in the plea. The party ought to have had notice that such a matter was going to be the subject of determination by the Court. This notice may be either specific A or it may be inferred from the fact that proceedings of which the party has notice would in the preliminary. ordinary course involve an adjudication of that matter, but notice to one form or other there must be. If the plea of res judicata is to prevail in the present case it ought to be shown that the appellants had notice of a dispute relating to identity of property which was to be sold and of the liability of such dispute being determined by the Court. A simple notice under Order XXI, rule 66 does not bring it home to the judgment-debtor that the Court is going to sell property which is not covered by the decree nor does the notice cast any duty on him to appear in Court to find out as to what property is going to be sold. He is entitled to presume that the Court is going to sell only the property covered by the decree. An argument based on estoppel may have been put forward against the judgment-debtors in the present case if there was description of property in the notice so as to bring it to their notice that property other than what they regarded as covered by the decree was going to be sold. But we find on a reference to the record that there were no specifications of the property which was going to be sold in the notice under Order XXI, rule

66. In fact such specification would in the present case have been an act of the office only because the Civil Judge had made a simple order that notice under Order XXI, rule 66 be issued. The dangerous consequences of holding that if once a simple notice under Order XXI, rule 66 is sent to the judgment-debtor any property may be sold in execution of the decree and the judgment-debtor would be totally debarred from raising any objection on .the ground of the identity of the property, are apparent. If there was any dispute as to the identity of the property arising out of some imperfect description in the mortgage deed or in the decree, the proper course for the decree-holder was to apply to the Court for a decision of that question under section 47 of the Civil Procedure Code after proper notice to the judgment-debtor. We are unable to hold that there was in the present case proper notice to the judgment-debtors as to the liability of a question relating to identity of property to be decided and the plea of res judicara should fail on this ground alone. We are also satisfied on a consideration of Order XXI, rule 661 that proceedings involved in it are not judicial, proceeding It should be remembered that the plea as to res judicata is based on the order of the Court directing particulars to be entered in the sale proclamation. The contention on behalf of the respondent is that by the description of the property in the proclamation of sale the judgment-debtor becomes bound. For convenient reference we reproduce below Order XXI, rule 66: "

66. Proclamation of Sales by Public Auction.-(1) Where any property is ordered to be sold by public auction in execution of a decree, the Court shall cause a proclamation of the intended sale to be made in the language of such Court. (2) Such proclamation shall be drawn up after notice to the decree-holder and the judgment-debtor and shall state the time and place of sale, and specify as fairly and accurately as possible- (a) the property to be sold; (b) the revenue assessed upon the estate or part of the estate, where the property to be sold is an interest in an estate or in part of an estate paying revenue to the Government; (c) any incumbrance to which the property is liable; (d) the amount for the recovery of which the sale is ordered; and (e) every other thing which the Court considers material for a purchaser to know in order to judge of the nature and value r of the property. (3) Every application for an order for sale under this rule shall be accompanied by a statement signed and verified in the manner hereinbefore prescribed for the signing and verification of pleadings and containing, so far as they are known to or can be ascertained by the person making the verification, the matters required by sub-rule (2) to be specified in the proclamation. (4) For the purpose of ascertaining the matters to be specified in the proclamation, the Court may summon any person whom it thinks necessary to summon and may examine him in respect to any such matters and require him to produce any document in his possession or power relating thereto." It should be explained here that sub-rule (3) was added for the first time in 1908 and the words in sub-rule (2) "be drawn up after notice to the decree-holder and the judgment-debtor and shall" were also introduced in 1908. Under the-earlier Code the Court could draw up the proclamation of sale without the help of parties. Obviously the Court was riot performing any judicial function under rule 66 as it stood before 1908. If the function of the Court under Order XXI, rule 66 was ministerial before 1908 it does not unnecessarily become a judicial one, because the proclamation is to be drawn up after notice to the parties. The object of the notices to the parties was to guard against the appearance of wholly wrong particulars in the proclamation. When one turns to the particulars which are to be mentioned and to the language used by the Code with respect to specification of particulars it hardly remains a matter of doubt that the Court does not record any judicial determination on the matters to be specified. With respect to specification the words used are is specify as fairly and accurately as possible". The particulars include the revenue payable, any incumbrance to which the property is liable and any other matter "which the Court considers material for a purchaser to know in order to judge the nature and value of the property". It is hardly possible to contend that in respect of every other matter" which the Court considers the purchaser should know the Court will, when the parties appear before it, inform them as to what it intends to put . in the proclamation and will then allow the parties an opportunity to lead evidence as to that matter. In order that a proceeding may be judicial every party should have a proper opportunity of proof of relevant facts by evidence. Order XXI, rule 66 does not envisage a proper judicial proceeding with opportunity to both parties to establish the facts which are to be entered in the sale proclamation. It should be pointed out that even if a notice Dunder Order XXI, rule 66 contained a description of property which the judgment-debtor did not accept, and on objection by the judgment-debtor the Court determined the identity of property covered by the decree, the proceeding relating to such determina tion would be under section 47, C. P. C. and not under Order XXI, rule

66. No appeal lies against an order under Order XXI, rule 66 while an order under section 47 is a "decree". Gauri v. Ude was not a case of a mortgage decree and when we look at the question referred in that case it will be clear that the finding of res judicata was based on the failure to object to attachment, which attachment is absent in the case of a mortgage decree. The question referred to the Full Bench in that case was the following: If property is attached in execution proceedings and if the judgment-debtor has objections to raise on the ground that the property is not liable to attachment or sale is he entitled to wait until sale has taken place and then have the sale set aside on the ground that the Court has no jurisdiction to sell the property. It will be observed that the question referred related to the effect of failure to object to an attachment. The objection in that case was on the ground of 'section 60, C. P. C. which provides that certain categories of property are not liable to attachment and sale. If a judgment-debtor has notice that his property has been attached he cannot lie by and raise an objection only after the sale that the property was not liable to attachment at all. The considerations in the case before us are different from the case before the Full Bench. We will now take up the question of limitation. Article 166 which has been applied to this case by the High Court is in the following words:- "

166. Under the same Code to 30 days. The date of the sale" set aside a sale in execu- tion of a decree including. any such application by a judgment-debtor. It is necessary for a proper understanding of this Article to refer to its history. In the Limitation Act of 1871 the corresponding g Article was 159 which was in the following words: "

159. To set aside a sale in 30 days. The date of the sale. execution of a decree on the ground of irregularity in publishing or conduct- ing the sale. It will be observed that this Article covered only one ground for setting aside a sale, that is, irregularity in publishing or conducting the sale. In the Act of 1877 two Articles were introduced, that is, 166 and

172. They were in the following words:- "

166. To set aside a sale in 30 days. The date of the sale. execution of a decree on the ground irregularity in publishing or conducting the sale or on the ground that the decree-holder has purchased without the permission of the Court.

172. By a purchaser at an 60 days. The date of the sale." execution sale to set aside the sale on the ground that the person whose interest in the property purported to be sold had no saleable interest there in. In 1908 Article 166 was substituted for Articles 166 and 172 as they existed in 1877 and was put in the form in which it has teen reproduced above, but without the words "including any such application by a judgment-debtor". These words were introduced by an amendment in the year 1927. The words "under the same Code" in Article 166 refer to the Civil Procedure Code, because the preceding Article 165 expressly refers to the Code of Civil Procedure. It should be explained here that applications with prayer that a sale be "set aside" can be made under four provisions of the Civil Procedure Code, that is, rules 72, 89, 90 and 91 of Order XXI. Article 159 of the Act of 1887 provided only for limitation for an application under rule

90. Article 166 of the Act of 1877 provided limitation for an application under rule 90 as well as for an application under rule 72, while Article 172 of the same Act provided limitation for an application under rule

91. Article 166 of the Act of 1908 covered applications under all the four rules of Order XXI. Prima facie Article 166 as enacted in 1908 would apply to applications invoking the power of the Court granted by specific provisions of the Civil Procedure Code to "set aside" a sale, that is applications under rules 72, 89, 90 and

91. Learned counsel for the respondents accepts that the Article as enacted in the year 1908 applied only to applications under rules 72, 89, 90 and 91 and that the words "set aside a sale" had reference only to those provisions of the Code where the Court was empowered by the Civil Procedure Code "to set aside a sale". Learned counsel contends, however, that the amendment of 1927 by which the words "including any such application by a judgment-debtor" were added made all the difference and that henceforth the Article became applicable to every application for setting aside a sale made by the judgment-debtor whatever the ground on which the sale was sought to be set aside. He relied in support of his argument on the statement of objects and reasons of Act I of 1927 by which this amendment in Article 166 was made. This statement of Objects and Reasons runs as below :- "In Chapter 41 of their Deport the Civil Justice Committee made recommendations of a number of amendments in the Indian Limitation Act, 1908, and the Local Governments and High Courts were consulted in the matter. The consensus of opinion is in favour of the following recommendations: (4) that Article 166 should be amended so as to make it clear that it applies to a petition by a judgment-debtor under section 47 of the Code of Civil Procedure, 1908." Learned counsel relied on the fact that there is a specific reference to section 47, C. P. C. in this statement and argued that all applications falling under section 47 therein a sale was impeached would be governed by Article

166. In view of the statement of object and reasons this argument would seem to have force, but on a closer consideration it would appear that the argument cannot be given effect to. The first objection to the argument is the following. As already stated in accordance with the concession of learned counsel for the respondent, a concession which appears to us to be well founded\in view of the history of Article 166 and the words used therein, the words "application to set aside a sale in execution of a decree" (the word `application' is to be read in all Articles in the third division in which division. Article 166 is included because the division relates to 'applications') refer in the Act of 1908 only to applications under rules 72, 89, 90 and 91 so that it would be quite proper to read references to these rules in the Article. Now if this was the meaning of the words as they originally existed, then the addition of the words "including any such application by a judgment -debtor" would not bring in section 47 even if this was the intention of the Legislature. The original rule it will be observed was applicable to the judgment-debtor as well as to other persons entitled to apply for setting aside the sale and the meaning of the original words obviously has remained the same so far as applications submitted by parties other than the judgment-debtor are concerned for the object of the amendment was to make a change only in relation to the judgment-debtor. It cannot be that the original words should now be construed in one sense while applying them to a person other than the judgment-debtor and in a different sense when applying them to the judgment -debtor. So the result is that in spite of the statement of Objects and Reasons Article 166 cannot be read so as to include an application under section 47, C. P. C. There is another and no less serious difficulty in the way of the acceptance of this argument. If it be accepted that all applications under section 47 impeaching a sale are governed by Article 166 the result would be that even in cases where the Court had no jurisdiction whatsoever to sell the property the sale would become absolute and not liable to challenge after the expiry of 30 days from the date of the sale. Learned counsel for the respondent is not prepared to take up this extreme position. A civil Court which was acting in a particular case as a Small Cause Court may have sold immovable property or evacuee property or agricultural land belonging to member of a notified agricultural tribe may have been sold. In such cases the sale would be wholly void and learned counsel for the respondent G accepts that Article 166 would not be attracted. Therefore the applicability of Article 166 would depend on whether the sale was void or one that needed to be set aside. We will presently show that the sale 'in dispute was not one which needed being set aside. We would also note that if Article 166 is applied to all cases where a sale is impeached then once there has been a sale by a Court it would become sacrosanct after the expiry of thirty days although the parties affected had no proper notice, because the application is to be governed by Article 166 and section 5' of the Limitation Act does not apply to applications governed this Article. There is an observation in Gauri v. Ude in the judgment of Bide, J. (with whom Beckett, J. agreed) that the Article applicable to an application for setting aside sale under section 47 was

166. The observation was obiter and without a full discussion. From what has been stated above it should appear that Article 166 even in its present form covered only applications for setting aside sale where such setting aside is specifically provided for in the C. P. C. There is an alternative basis however for the interpretation of this Article, namely, that the words "setting aside" may refer only to a case where the sale is valid till it is, set aside and they may have no application to a case where ` a party simply seeks a declaration that the sale is null and void and of no effect. Even if the words "set aside" be used in the application the real relief granted may be only a declaration. When a sale is without jurisdiction and therefore a nullity, Article 166 can be excluded even on the ground that the application is not for setting aside a sale. The sale with which we are concerned is also one which even on this interpretation of Article 166 would be excluded from its operation Court has power to sell in execution of a mortgage decree only property covered by the mortgage decree. When a party) applies to the Court for setting aside a sale of property which was not covered by the decree it is just asking the Court to declare that the sale was without jurisdiction and void. One point needs clarification here. It is true that an executing Court has jurisdiction to determine what property is included in a decree and a sale, therefore, of property which is not included in the decree may not (at least in a case where the Court is deemed to have determined the question of identity of property) be null and void so as to be disregarded in collateral proceedings. A void order or an order without jurisdiction can and should be ignored in collateral proceedings and it may be argued that the sale of property not included in a decree would not be such as could be ignored in collateral proceedings. But this is a case where there is what may be called for want of better language a case of qualified want of jurisdiction. If the Court does reach the conclusion that the property was not covered by the decree then it will itself declare the sale to be null and void and without jurisdiction and an appellate Court too would if it reached the conclusion that property not covered by the decree had been sold would make a similar declaration. It is a case where a lack of jurisdiction depends upon a finding by a Court, but it is a lack of jurisdiction all the same so that it is ultimately not a case of the setting aside a sale but declaring it to be void. We have considered whether we should place the case on the footing that the words of Article 166 relate only to application under rules 72, 89, 90 and 91 of Order XXI, C. P. C. or on the footing that they refer to all cases where a sale is to be set aside, but not to cases where the sale does not need being set aside. Learned counsel for the respondent has conceded before us that the Article in its original form refers only to rules 72, 89, 90 and

91. We have already said that this concession is well founded having regard to the history of this Article as well as to the words used in the Article, those words being "an application, under the Civil Procedure Code to set aside sale" which suggest that specific reference is being made to provisions wherein the Court is granted a power of setting aside a sale. We would, therefore, accept the first interpretation, but without positively ruling out the other, because so far as the present case is concerned, even on the other interpretation the application was within time, being governed by the residuary Article 181 which provides for limitation of three years. We accept this appeal, set aside the order of the High Court and remand the case for a fresh decision. There is no order as to costs. K. B. A Appeal accepted.