Report No. 27

Order XXI, rule 22

1. Two recommendations relevant to Order XXI, rule 22 were made in the Fourteenth Report1-2. At present, notice is necessary if one year has elapsed from the date of the decree. The Fourteenth Report recommended substitution of a period of three years in its place. Further, it recommended that the failure to issue the notice or to record reasons for non-issue, etc., should not render the proceedings void, unless substantial injury is caused.

2. A brief statement of the existing position on these points is given below:-

(i) Before 1914 there was a conflict of authority as to whether omission to issue notice under rule 22 rendered the sale void or voidable. After the Privy Council decision3 holding that it is the notice which confers jurisdiction, all the High Courts (following that decision) held, that in the absence of the notice, the sale was void4-5-6-7. The Madras High Court in certain decisions regarded the sale as voidable and distinguished the Privy Council decision on the ground that that decision was given under the old Code, while in the present Code, sub-rule (2) showed that the rule could be relaxed8. But this view was rejected in later Madras cases9-10.

(ii) Amendments relaxing the rigour of this rule, have been made by some of the High Courts, e.g.-Allahabad; Calcutta-see the under-mentioned decisions11; Andhra-similar to Madras Amendment; Assam-similar to Calcutta Amendment; Kerala- similar to Madras Amendment; Madras-see the under-mentioned case12; Orissa-similar to Patna Amendment; Patna-see the under-mentioned decisions13; and Punjab. Most of these amendments are confined to failure to record reasons while the Calcutta Amendment seems to cover non-issue of the notice itself.

3. After some consideration it has been decided that it would not be proper to make an amendment relaxing the rigour of this rule. The provision for notice being of an essential character, the position laid down by the Privy Council need not be disturbed.

4. As regards increase of the period, it is considered sufficient to increase it to two years.

Necessary change is proposed.

1. 14th Report, Vol. I.

2. See also Civil Justice Committee (1924-25) Report, p. 387, para. 16.

3. Raghunath v. Sundar, ILR 42 Cal 72: 41 IA 251: AIR 1914 PC 129.

4. Shyam v. Satinath, ILR 44 Cal 954.

5. Chandi v. Jumna, ILR 49 All 830.

6. Adkia v. Shankar, AIR 1921 Nag 126.

7. Anil v. Ahmad, AIR 1940 Cal 23.

8. Kasivisvanathan v. Somasundaram, ILR 45 Mad 875.

9. Rajgopal v. Ramanuja, ILR 47 Mad 288: AIR 1924 Mad 431 (FB).

10. Kanchamalai v. Shahaji, ILR 59 Mad 461: AIR 1936 Mad 205.

11. Dwarka v. Abdul, 48 Cal WN 346; Mahadeo v. N.D.U. Tea Co., 55 CWN 408; see also AIR 1961 Cal 336.

12. Thomas v. Simon, AIR 1957 Travancore-Cochin 153 (construing an amendment similar to the Madras Amendment).

13. Bal Mukand v. Pirthiraj, AIR 1951 Pat 333; Shyam v. Naurangi, AIR 1946 Pat 270; Ram Lal v. Ramia, AIR 1947 Pat 454; Raj Kishore v. Subak, AIR 1959 Pat 89; see also AIR 1961 Pat 480 (508); Sukhdeo v. Brahmdeo, AIR 1957 Pat 431; Ram Saran v. Deo Nandan, AIR 1957 Pat 433; AIR 1953 Ori 296 (construing an amendment similar to Patna).