1. ZAFFAR HUSSAIN MIRZA, J.---This appeal by leave arises out of a suit filed by one Seth Hussaini on 24th February, 1949, against Mst. Hiran Bai a Hindu lady, for specific performance of an agreement of sale dated 15th November, 1948, between the parties in respect of agricultural land, comprising 405 acres and 2 ghuntas with a garden and bungalow thereon, situated in Dehs Hatri and Mirzapur, Taluka and District Hyderabad. The appellant Lilaram is the son and successor of the said Hiran Bai, and the respondents are the sons and legal representatives of Seth Hussaini both of whom died during the course of litigation. The aforesaid suit was decreed on 21st December, 1949. An execution application bearing No.3/51, was thereafter filed by the respondents on 13th December, 1951, but in the events that happened this Execution Application was dismissed for non-prosecution on 2nd March, 1955. It is the case of the respondents that on 3rd February, 1958, another execution application was filed by them which was registered as Execution Application No9-A/58. It so happened that this Execution Application was also dismissed on 30th January, 1959 for non- prosecution but it was subsequently restored on the application of the respondents by order dated 27th August, 1959. The Execution Application, however, did not proceed further due to a dispute with regard to the status of the subject-matter of suit as to whether it was or was not evacuee property.
2. This dispute finally concluded on 10th May, 1961, when in another proceedings the High Court declared the property as non-evacuee property. It may be stated that Hiran Bai was still alive and therefore the respondents who shall be referred to as the decree-holders, applied to the executing Court on 24th May, 1961, praying that the Nazir of the Court be directed to register the sale-deed in furtherance of the execution of the decree obtained by the decree-holders. To this application objections were filed on behalf of Mst. Hiran Bai (judgment-debtor) which were, however, rejected by the executing Court vide its order dated 15th July, 1961. Against the last mentioned order rejecting her objections Hiran Bai filed an appeal in the High Court, during the pendency of which she died and after her demise the present appellant was substituted in her place as her sole legal heir on his own motion vide order dated 14th October, 1964. This appeal was then heard and dismissed by the High Court on 11th May, 1966, with the result that the order of the executing Court was upheld. An appeal brought before this Court also failed and was dismissed on 12th September, 1974.
3. As to the proceedings taken by the executing Court consequent to the dismissal of appeal of the appellant by this Court, there is a dispute between the parties. However, for the present it would suffice to reproduce the narration of further facts from the judgment of the High Court in this appeal which. Is as follows:- "It appears that after dismissal of the appeal by the Supreme Court notices were issued by the executing Court to the respondent/decree-holders and on 4-11-1976 an order dismissing the execution application for non-prosecution was passed. It is contended by the learned counsel for the appellant that this order of dismissal passed by the executing Court was made on the execution application bearing No.9-A/58, whereas the learned counsel for the respondents/decree-- holders contends that this order could not have been passed on execution application No9-A/58 as by that time the record of execution No9-A/58 was not received by the executing Court from the Supreme Court. The certified copy of tile order of executing Court shows that it was passed in relation to the execution application N0.3 of 1951 and it is clear from the letter dated 6th April, 1978 sent by this Court to the first class Civil Judge, Hyderabad, forwarding the R & P of Execution No.9-A/58 in Suit No.Ll/1948 to that Court, that until then the R & P of Execution No.9- A/58 was lying in this Court, therefore, feel no difficulty in arriving at the conclusion that the; order dated 4-11-1976 passed by the executing Court dismissing the. Execution application could not have been passed with regard to execution application No.9-A/58, R & P whereof was forwarded to the Court of Civil Judge only on 6th April, 1978, by this Court. It is admitted before me by the learned counsel for the appellant that the notices issued by the executing Court after the order of the Supreme Court directing the respondents/decree-holders to appear in the Court were returned un-served by the process server with the endorsement that the decree-holders are residing in Karachi and that no effort was made to serve the decree-holders at their Karachi address or by substituted means cm their last known addresses. In these circumstances it was not open to the executing Court to dismiss the execution application for non-prosecution without first serving the decree-holders properly in the case. Be that as it may the position remains that the respondents on 10-9-1977 Filed a Miscellaneous application before the executing Court under section 151, C.P.C.
4. Praying that the execution be issued against the appellant. This application was duly served on the appellant and objections were also Filed in the execution case by the appellant. The objections filed by the appellant were rejected by the executing Court on 8-2-1979 and respondents were directed to file a fresh draft of sale-deed and this order is now impugned in this appeal."
5. A learned Single Judge of the Sindh High Court, dismissed the appeal by his judgment dated 6th December, 1981. Being aggrieved by the aforesaid judgment of the High Court, the appellant came up before this Court and leave was granted to consider, inter alia, the following questions: "(1) Whether the High Court was in error in holding that the execution application that was dismissed on 4-11-1976, was execution application No.3 of 1951 and not execution No.9-A of 1958, when it is the admitted position that execution application No. 3 of 1951 was dismissed on 2-3-1955.
(2) Whether on the facts and circumstances of the case an order of execution of the decree passed against the deceased judgment-debtor could be executed against the petitioner her legal representative in the absence of a notice issued under Order 21 rule 22 read with section 50 C.P.C."
6. Mr. Abdul Hafeez Pirzada, in the first instance contended that the second execution application No:9-A/58, having been dismissed on 4th November, 1976, no further proceedings could be taken thereon, in pursuance of an application under section 151 C.P.C. Made by the decree-holders on 10th September, 1977. As would appear from the portion of the judgment reproduced above, the learned Single Judge has held that the aforesaid order dated 4th November, 1976, was not passed on execution application No 9-A/1958, but on the previous pending Execution Application No.3/1951.
7. This finding of the learned Judge was primarily based upon the certified copy of the order placed on the record which revealed that the order was passed in execution application No.3/51. Another reason that prevailed with the learned Judge to reach this finding was that letter dated 6th April, 1978, sent by the High Court to the First Class Civil Judge, Hyderabad, showed that the R & P of the Execution Application No.9-A/58, in suit No.Ll/48 was forwarded to that Court, which showed that until that date the records of the said execution application were not received by the executing Court.
8. The original records of tile two execution applications were sent for and have been examined by us.
9. The perusal of Part 11 of file of Execution Application No.9-A/58, indeed shows that R & P of Execution Application No.9-A/58 in. Suit No.Ll/49, was returned by the High Court with the letter dated 6th April, 1978, which according to the diary of the case dated 15th April, 1978, was received from the High Court on the said date on which the First Class Senior Civil Judge, Hyderabad, ordered that tile file be put up on the date of hearing, vu. 25th April, 1978. However, the main file of F.C. Suit No. 11/49 in which is placed the original Execution Application No.3/51, shows the diary of the case records on 17th January, 1976, as follows: "Matters received back from the Supreme Court. Issue notices to the parties' advocates. Hearing 14th February, 1976."
10. In the same file there are several entries regarding orders for repeating notice to the decree- holders and finally is the order passed on 4th November, 1976, to the effect that the Court motion notices have been returned unserved on the legal representatives of the decree-holder with the endorsement that they are residing at Karachi and since the matter was quite old it appeared to the learned Judge that the decree-holders were not interested in the matter, accordingly the application was dismissed for non-prosecution. The various notices issued to the decree-holders in this file before passing of the aforesaid order clearly show that the same were issued in Execution Application No.3/51 and the order dismissing the Execution Application has also been expressly passed in Execution Application No.3/51. Therefore, the learned Judge was obviously right that the learned Judge of the executing Court did not consciously pass the aforesaid final order in Execution Application No.9-A/51. From the main file of the suit and the Execution Application No.3/51, we find the communication from the High Court of Sindh and Baluchistan, Karachi, dated 15th January, 1976, forwarding a copy of the judgment and decree passed by the Supreme Court in Civil Appeal No.22-K/1969, dated 12th September, 1974, alongwith the record of Suit No.Ll/49 on which the learned First Class Senior Civil Judge, passed order of notice to parties fixing the date of hearing as 14th February, 1976. What seems to have happened is that the main file of the original suit which contained the papers of the first Execution Application No.3 of 1951, were received on 15th January, 1976, but the re cord and proceedings of the second Execution Application No. 9-A/58 seem to have been, some how lying in the High Court which were forwarded to the' civil Court subsequently on 6th April, 1978. Therefore, the finding of the learned Judge is in consonance with the record and it appears that the learned Judge who was dealing with the execution proceedings, was not conscious of this fact and may perhaps have been unaware of the disposal of Execution Application No.3/51 earlier and therefore treating it as pending revived the proceedings by ordering the Court notice to the parties. In the presence of the earlier order finally dismissing Execution Application No.3/51, dated 2nd March. 1955, a subsequent order dismissing the same application would be meaningless and apparently passed erroneously. Therefore it is not possible to hold that Execution Application No .9-A/58 was disposed of by order dated 4th November, 1976.
11. Be that as it may learned Judge further. Held that in any case the aforesaid order dated 4th November, 1976, if passed in Execution Application No.9-A/58 was patently illegal as no notice was served by the Court on the decree-holders for recommencing the proceedings after the decision of the appeal by the Supreme Court. In this connection learned Judge has observed that it was admitted on behalf' of the appellant that the notices issued by the executing Court were returned unserved by the process server with the endorsement that the decree-holders were residing in Karachi, but no effort was made to issue notice at their proper address at Karachi or through substituted service. This conclusion of the learned Judge is also borne out by the endorsement of the bailiff which has been filed on the record of this appeal vide endorsement of the bailiff dated 22nd October, 1976, in respect of a notice issued to the decree-holders dated 9th October, 1976, which is probably the last notice before the order in question was passed. It is well settled that an order passed without notice of the hearing against a party even in civil proceedings before a Court of law would be without jurisdiction and coram non judice. We have, therefore, no hesitation in upholding the view of the learned Judge because such an order would be non est in law and would be subject to collateral attack in any proceedings. We, therefore, find no substance in the first contention raised by the learned counsel.
12. It was then urged on behalf of the appellant that the order -passed in execution by the executing Court dated 8th February, 1979, ordering the execution of the decree against the appellant is illegal as no notice under Order XXI rule 22, C.P.C. Was issued at any stage to appellant Lilaram who is being subjected to execution of the decree in his capacity as the legal representative of the deceased judgment-debtor Hiran Bai. In this connection learned counsel also made reference to section 50, C.P.C. And submitted that Hiran Bai being a Hindu lady, there are other legal representatives upon whom the estate of the deceased has devolved in accordance with Hindu Law and therefore, it would be necessary to implead all the legal heirs and issue notice to them before ordering execution. We may at once observe that so far as other legal representatives are concerned, the appellant has no right to urge any objection on their behalf much less when their names and relationship with the deceased have not been disclosed by him. It is not denied that the appellant is himself a legal representative of the deceased judgment-debtor. Indeed the appellant himself came forward and moved the Court upon the demise of Hiran Bai when her appeal was pending in the High Court to be substituted in her place as her sole legal representative. He cannot therefore, be permitted to blow hot and cold or approbate and reprobate in the same proceedings by taking up the position that he is not the sole legal representative of the deceased even though it is a fact that there were other legal representatives.
13. So far as the objection with regard to want of notice under Order XXI rule 22, C.P.C., learned counsel placed reliance on several judgments in support of the proposition that such a notice is mandatory. In this connection reference was made to Raghunath Das v. Sundar Das Khetri (AIR 1914 P C 129), Rajagopala Aiyor v. Ramanujachariyar and another (AIR 1924 Madras 431), T.Smith and another v. Kailash Chandra Chakravarty (A IR 1932 Patna 199), Ajab Lal Dubcy and another v.
14. Hari Charan Tewari alias Hari Tewari and others (AIR 1945 Patna 1) and Minor Smt. Shanti Devi v.
15. Khandubala Dasi and others (AIR 1961 Calcutta 336).
16. The rule laid down in the Privy Council case Raghunath Das was not followed in several decisions reviewed in the next case referred to, namely, Rajagopala from Madras, where it was pointed out that the first mentioned case was decided under the old Civil Procedure Code of 1882, the provisions of which were materially different from the provisions of Order XXI rule 22 of the present C.P.C. It was, therefore, held in those cases that the proceedings taken without notice to the legal representatives are not necessarily without jurisdiction and are merely an irregularity. However, the Madras High Court held the notice mandatory. The two Patna cases follow the case of Raghunalh Das and, therefore, need not be commented upon. In Minor Sint. Shank Devi v. Khandubala Dasi and others (AIR 1961 Calcutta 336), Order XXI rule 22 as amended by the Calcutta High Court was considered and it was held that omission to issue the notice required there under is a mere irregularity not affecting the jurisdiction of the Court in executing the decree. The present case appears to be within the dictum laid down in this case.
17. We may, however, refer to Bandu Hari v. Bhagya Laxman and others (AIR 1954 Bombay 114), in which the Privy Council and Madras cases on which reliance has been placed were referred to alongwith a number of other decisions and it was held that the provisions of Order XXI rule 22, C.P.C.
18. Were enacted for the benefit and protection of the judgment-debtor, therefore, if he actually appears in execution proceedings and raises various objections the object of giving him notice under the said provisions of affording an opportunity to him to show cause against execution, would be achieved. In such a case such judgment-debtor was held not entitled to raise the objection with regard to want of a formal notice. We are inclined to this view and we feel that the present case is fully within the dictum laid down which we approve. Otherwise it will mean putting premium upon a mere technicality being pushed to the extreme. We have already held that the technicalities cannot be allowed to be pressed for defeating the ends of justice. Reference may also be made to Chacko Pyli v. Iype Varghese (AIR 1956 Trav.-Co. 147), in which similar view was taken. We are, therefore, of the view that lack of formal notice under Order XXI rule 22, Civil Procedure Code in the present case has not resulted in vitiating the proceedings in the execution taken against the appellant.
19. One of the grounds on which the learned Judge in the High Court repelled this contention was that after the receipt of the record of execution application No.9-A/58 from the Supreme Court, the appellant was issued notice which was duly served upon him and he had contested the proceedings by filing the objections before the Court. This notice was issued on the application of the decree-holders dated 10th September, 1977, under section 151, C.P.C. In which prayer was made for execution to issue against the present appellant. For all intents and purposes, therefore, the appellant had notice that execution was being sought against him as a legal representative of the deceased judgment-debtor. Therefore, both facts appeared to be undisputed, namely, that appellant is admittedly the legal representative of' deceased judgment-debtor and that notice was received by him that execution was being sought against him. No exception can, therefore, be taken to the conclusion reached by the learned Single Judge in the following words: "The fact that the notice dated 18-9-1978 issued by executing Court to the appellant describing him as "Hiran Bai wife of Parsram Shivadasani (deceased) through her L.R. Lilaram" was substantial compliance of the provision of Order 21 Rule 22 and section 50 C.P.C. In the circumstances of the case."
20. The last contention raised by the learned counsel was that the second execution application No.9- A/58 was barred by limitation. In support of this contention learned counsel submitted that during the pendency of Miscellaneous Civil Appeal No.15/1979, in the High Court of Sindh (out of which the present appeal has arisen), certain facts came to the notice of the appellant for the first time which revealed that some interpolation had been made in the relevant register maintained by the, executing Court in regard to the receipt and entry of the execution application No.9-A/58.
21. Therefore, an application under Order 41 Rule 27 C.P.C. Was submitted on behalf of the appellant alongwith a certified copy of the extract from the Institution Register of execution applications in the first class suits in the First Class Civil Court, Hyderabad, for the year 1958, praying that the document may be received as additional evidence and also the original Institution Register may be summoned. It appears that this application was not disposed of separately but was considered at the time of final disposal of the appeal while considering the point of limitation raised on behalf of the appellant. It seems that the original register was not called for but the objection was overruled after considering the question of the authenticity of the entry made in the Register of Executions. The learned Judge held that this objection was not raised at any previous stage by Hiran Bai during her lifetime, nor was it raised in the first appeal in the High Court against the order of the executing Court. Even before the Supreme Court or the executing Court after the remand no such objection was raised. In these circumstances learned Judge was of the view that the objection was clearly an afterthought raised with the object of delaying the proceedings. On the question whether there was any arrangement, made or forgery effected in the Institution Register and with the date of presentation of the second application for execution (Execution Application No.9-A/58), the learned Judge observed as under: "However, at the instance of learned counsel for the appellant I have looked into the original file of Execution No.9-A/58 and found that the endorsement of presentation made thereon appears to have been made in the normal and ordinary course of business and the learned counsel for the appellant was unable to point out anything in the endorsement which could make it appear suspicious or doubtful in nature."------"The execution clerk who enters the application in Execution Register performs his duties under the supervision of C.M.O. In this view of the matter the presentation of execution application to C.M.O. And cancellation of stamps thereon on 3-2-1958, was perfectly in order and legal. It is conceded by the learned counsel for the appellant that the execution application if validly presented on 3-2-1958 was within time. As I have reached the conclusion that the presentation of execution application on 3-2-1958 was valid and in accordance with the law I accordingly hold that the execution application was presented within time.
22. With the assistance of the learned counsel for the parties we have perused the original record of execution application No.9-A/58 and the Institution Register. We find that there are, prima facie, grounds for a detailed inquiry into the allegations of fraud or forgery in this case, in order to dispose of the question of limitation. It may be stated that the first Execution Application No.3/51 was dismissed on 2nd March, 1955. Under the then existing law afresh execution application could be submitted within three years from the date of the order disposing of the first execution application.
23. Therefore, the last date for filing the second execution application was 3rd February, 1958. The original record shows that this application was presented on 3rd February, 1.958, before the C.M.O.
24. By the plaintiff Abdul Muhammad Hussaini when the stamps have been cancelled.. However, .On the back of the execution application there is a note perhaps by the execution clerk to the effect that the application had been misplaced inadvertently and had been discovered while looking for other cases and therefore, was being put up for orders. Thereafter the Judge has passed the order on 26th May, 1958, for admitting and registering the execution application and for issuing notice tinder Order XXI rule 22 C.P.C. The original Institution Register (Register No.V) for execution application has also-been perused by us and it has been pointed out that the relevant entry is clearly in a distinct ink from the other entries immediately proceeding and following the same.
25. According to the learned counsel for the appellant the relevant entry bears serial No.9-A which has obviously been squeezed in the normal space left between the entries bearing serial Nos. 9 and 10.
26. We would not like to comment upon the genuineness authenticity or validity of the entries in view of the order that we propose to make, that will be for the executing Court to determine. We may refer to section 12(2) C.P.C. Which bars a separate suit to be filed in case of fraud, misrepresentation or want of jurisdiction rendering an order passed by a Court, invalid which is required to be determined by the Court which passed such order. If the execution application was not presented on 3rd February, 1958, and was subsequently ante-dated, then it was obviously done so by fraud and the execution application would then be barred by limitation. We, therefore, feel that there were sufficient grounds for the learned Judge in the High Court, if he had seen the original record to refer this matter to the executing Court for inquiry and decision.
27. For the foregoing reasons we accept this appeal, set aside the order of the High Court and remand the case to the executing Court for decision of the question of limitation in the light of finding with regard to the allegations that the execution application was not presented on 3rd February, 1958 but the entries were subsequently made in order to show that in fact it was so presented on that date. In the circumstances of the case we make no order as to costs.
28. The original records called for from- the Court of First Class Civil Judge, Hyderabad, shall be returned at once.