Dhavle, J.This is an appeal from a decision of the Subordinate Judge, Second Court, Mongbyr, setting aside an execution sale. The suit to which the execution relates was brought in 1921 for the recovery of a loan by enforcing a mortgage bond of 1907. A preliminary mortgage decree was obtained in 1922 and the final decree in 1923. The first execution was taken out in 1925 and in the course of it the mortgagor-judgment-debtor was, on account of his death, replaced by his son Tikait Basuki Prasad Singh. The present execution was taken out in 1928, within three years of the previous execution, by F.E. Chrestien, executor of the mortgagee-decree-holder, and now the appellant.

2. There were three parties defendants in the suit. The first party was the late Tikait, who was replaced in the previous execution by his son Tikait Basuki Prasad Singh. Defendants second party were subsequent encumbrancers and numbered 75 or more including one or more families of Rais, Babhans by caste, besides several Kayasthas, Brahmins, Rajputs and other castes. The third party of defendants consisted of subsequent purchasers of portions of the mortgaged properties. We are now concerned with Jaideo Rai, defendant and judgment-debtor No. 28, who was one of the defendants second-party; be made the application which has been allowed by the lower Court, and is the respondent in this appeal.

3. According to the prayer in the execution petition the lower Court issued notices under Order 21, Rule 22. On account of the large number of judgment-debtors, some difficulty was experienced in serving notices on some of them, but when the lower Court was satisfied that all the judgment-debtors had been served with the notices, the decree-holder (using this term to include his executor, the appellant) took out notices under Order 21, Rule 66 for settling the sale proclamations. After the service of these notices, sale proclamations were issued, and then an objection was preferred by Tikait Basuki Prasad Singh u/s 47, Civil P.C. After protracted proceedings this objection, which (among other things) urged that the mortgaged properties--Taluka Chakai and one-third share in Mahal Chandwari--were not saleable as they were Government ghatwalis, that the decree was not binding on the present Tikait, and that the valuation given in the sale proclamations was inadequate, was dismissed in September 1930.

4. The decree-holder then proceeded with the execution and took out fresh sale proclamations. On 16th June 1931, the auction sale was held and both the properties were purchased by the decree-holder--Mahal Chandwari for Rs. 15,000 and Taluka Chakai for Rs. 1,44,479-7-9.

On 14th July 1931 Jaideo Rai, who (as has been already stated), figured among the defendants-second-parts and was judgment-debtor No. 28, applied under Order 21, Rule 90, Section 47, Civil P.C., for the setting aside of the sale, urging that all the execution proceedings had been taken fraudulently in collusion and concert with the Court peons (entrusted with the service of the notices) and without his knowledge and information, and that they had caused "much harm" to him. The execution proceedings, including the sale, were also assailed as without jurisdiction on the ground that no notice under Order 21, Rule 22 had been served upon him.

5. It was also objected that there was no due service of the sale proclamations. The decision of the lower Court upon this application was that the sale must be set aside, "not only for want of notice under Order 21, Rule 22, but owing to material defect in the service of sale proclamation which has resulted in substantial injury." Hence this appeal. The first question that arises before us is whether a notice under Order 21, Rule 22 was served on Jaideo. That a notice was issued in the name of Jaideo is beyond question and has not been disputed. The way in which the notice is alleged to have been served is to be gathered from the report of the serving peon, Baj Ballabh Pandey witness No. 2, for the decree-holder on the back of the notice. The undisputed genealogy is that Jaideo is a son of Gendhari Rai, that Gendhari and Chatroo were sons of Anand Rai, and that Meghlal, a brother of Anand Rai, was father of Pitambar, Sankar and Hargauri.

6. The notice, I am referring to is printed at p. 37 of part 3 of the paper book and was addressed to Pitambar and his two brothers and two sons and several other members of the family, besides Jaideo and others, in all 17 persons, all described as residents of Mauza Satsala, taluka Kiajory pargana Chakai, district Monghyr.

The peon only found six of the seventeen persons (and not Jaideo), who however refused to receive the notices in the names of themselves or their relations and to grant receipts. He therefore hung up 17 copies of the notice "on the east-facing residential house, as all the judgment-debtors live together."

7. This service had been accepted by the lower Court before the execution case was further proceeded with. Jaideos objection was that he never resided at Satsala, but that his residence was in mauza Kharna in the district of Bhagalpur and sometimes at Singhjori in the district of Dumka (Santal parganas) also. (His Lordship then discussed the evidence, and proceeded.) Considering the entire evidence, I see no reason to differ from the finding of the learned Subordinate Judge that "it is to be doubted whether the applicant (Jaideo) lives in Satsala." No fraud, no collusion and concert with the Court peons, was found by the learned Subordinate Judge, nor has it been urged before us that any is established by the evidence.

8. The position thus is that the decree-holder has failed to show that the house on which the notice for Jaideo was stuck up was a house in which he ordinarily resided or carried on business or personally worked for gain; and apparently it was not. Under Order 5, Rule 17, Civil P.C., the serving officer may effect service in this mode only if "after using all due and reasonable diligence" he cannot find the defendant. When service is effected in this mode; the Court is required under Order 5, Rule 19 to proceed on an affidavit or other evidence and then "either declare that the summons has been duly served or order such service as it thinks fit." In the present case the lower Court accepted the affidavit (or affidavits) of service and recorded in the order sheet "service of notice proved." It does not appear from the evidence that the peon had used any diligence at all in order to find Jaideo, and as it also appears that the house on which the notice was stuck up was not within Order 5, Rule 17; it is clear that the respondent can at least claim that the Service was irregular.

9. As regards the effect of the notice, the learned Subordinate Judge says:

Therefore notice to him (Jaideo) should have shown him resident of Singhjori or Kharna to be the proper notice. That being so there was no proper issue of notice in this case. That goes to the very root of the execution case and all proceedings must be taken as void for want of that.

It has been contended on behalf of the appellant that in so holding the lower Court is entirely mistaken, and that the issue of the notice, followed by the formal note of the lower Court "service of notice proved" in the order sheet of 15th January 1929, corresponding to a declaration under Order 5, Rule 19 that the notice had been duly served, not only entitled the lower Court but actually required it under Rules 23 and 24 of Order 21 to proceed with the execution: see Ishan Chunder Roy v. Ashanoollah Khan (1884) 10 Cal 817.

10. On the other hand, it has been urged on behalf of the respondent that a notice with a wrong address is no notice at all and that as it was not actually served on Jaideo, the lower Court had no jurisdiction to proceed with the execution and that the sale held by that Court is null and void and not binding on him. Several rulings have been discussed before us, in which it was held, on the authority of the decision of the Privy Council in Raghunath Das v. Sundar Das Khetri AIR 1914 PC 129, that execution sales are void if held without the issue of a notice under Order 21 Rule 22. In Gurudas Biswas v. Bhowanipur Zamindary Co. AIR 1921 Cal 609, it was held, having regard to the object of the rule, that the mere issue of a notice is not sufficient but that the notice must, to be effective, also be served.

11. That however was a case in which it had been found that the notice was not served, irregularly or otherwise. For the appellant reliance is placed on a decision of this Court, Das Narayan Singh v. Mir Muhammad Yusuf AIR 1921 Pat 145, in which it appeared that a notice under Order 21, Rule 22 had been issued but the decree-holder had not made full enquiry as to the whereabouts of the judgment-debtor and had got the process served in a haphazard manner, the judgment-debtor not having been found and the notice being stuck up on the house in which he lived with a brother who had refused to take the notice.

12. After referring to a case from Ram Kinkar Tewari v. Sthiti Ram Panja AIR 1918 Cal 171, in which it was held upon the authority of Raghunath Das v. Sundar Das AIR 1914 PC 129 that the omission of the notice under Order 21, Rule 22 makes the sale void for want of jurisdiction. Jwala Prasad, J., (with whom Adami, J., concurred) observed:

In the present case there was no omission at all. The decree-holder was directed to have the notice served. He did comply with the direction of the Court and the Courts officer, namely the peon, served the notice on behalf of the Court. That was a matter therefore between the Court and its officer. The Court thereafter accepted the service return and noted in the order sheet that the service was duly proved. After that order there was no want of jurisdiction to execute the decree by the subsequent provision in Order 21, namely, by attachment and sale of the property. An irregularity in the service of a process is quite a different thing from the absence of the issue of any such process. The one relates to the procedure, and the other goes to the root of the jurisdiction of the Court. Assuming for the sake of argument that the decision of the Court, recorded in the order sheet that the notice was duly and properly served was wrong, still the Court had jurisdiction to decide the question of service of notice rightly and also wrongly. This principle was well enunciated in the case of Malkarjun v. Narhari (1900) 25 Bom 337.

13. On that view the order of the lower appellate Court setting the sale aside was reversed, notwithstanding the irregularity in the service of notice. It has been urged on behalf of the respondent that in latter cases this Court has taken a different view of the effect of irregularities in the service of notice. We must however not lose sight of the distinction between an omission to take out the notice at all and mere irregularities in serving it. Cases such as those of T. Smith v. Kailash Chandra AIR 1982 Pat 199 (the most recent case to which our attention has been drawn), are cases in which no notice was issued under Order 21. Rule 22 at all, and are therefore not in point. It is also by no means settled in this Court that the absence of a notice under Order 21, Rule 22 is fatal to the proceedings.

14. There is an interesting discussion on the effect of non-compliance with Order 21, Rule 22 in the Full Bench decision of the Madras High Court in Rajagopala Aiyar by guardian Ramachandra Aiyar Vs. Ramanujachariar and Another, , Schwabe, C.J., was inclined to the view, if the matter had been free from authority, that such non-compliance was a material irregularity but not an illegality which would make the subsequent sale a nullity. Ramesam. J., discussed three possible views of the effect of want of notice under Order 21. Rule 22 without any strong inclination in favour of any one of them, and concurred in the unanimous decision of the Court, which was rested on the authority of Raghunath Dass AIR 1914 PC 129 case that want of notice made the execution sale void. This view however is not consistent with the decision in Fakhrul Islam and Others Vs. Bhubaneshwari Kuar, , in which Kulwant Sahay, J., (with whom my learned brother agreed) said:

It is next contended that a sale without the service of the notice under Order 21, Rule 22, was without jurisdiction. In ordinary circumstances it would be so and there are authorities to the effect that a sale held without the service of the notice under Order 21, Rule 22 is a sale held without jurisdiction. In the present case however the facts are that a notice was issued but suppressed. Thereafter the judgment-debtors appeared and raised objections to the execution of the decree as well as to the validity of the sale. Those objections were heard and disposed of by the Subordinate Judge and thereafter he directed the decree-holder to take further steps. Under the circumstances there is no sense in insisting on the issue of a fresh notice under Order 21, Rule 22. and the service thereof requiring the judgment-debtors to show cause why execution should not proceed.... All that Order 21, Rule 22 requires is that opportunity should be given to the judgment-debtors against whom execution is taken out more than a year after the decree to show cause why execution should not proceed. If a notice is issued but not served and yet the judgment-debtors appear in Court and raise objections, the object of Order 21, Rule 22 is attained. In my opinion the fresh issue of a notice under Order 21, Rule 22 after the setting aside of the first sale was not necessary and the notice issued before the sale of 26th July 1926 (which was not a notice under Order 21, Rule 22) was sufficient in order to give the Court jurisdiction to hold the sale, especially when the judgment-debtors had appeared and taken all the objections that they could take to the execution proceedings.

15. If there may thus be circumstances in which, even apart from Sub-section 2, Order 21, Rule 22, the notice under Sub-section 1 can be dispensed with, it is obvious that a failure to issue the notice does not go to the jurisdiction of the executing Court. As was pointed out by Mookerjee, J., in Livinia Ashton v. Madhabmoni Dasi (1910) 5 IC 390 the language of the provision for a notice may be mandatory, but this is by no means conclusive; and one test of its real character would be whether the notice can in any circumstances be dispensed with. Nor was there any express pronouncement about Order 21, Rule 22 by their Lordships of the Judicial Committee in Raghunath Das v. Sundar Das Khetri AIR 1914 PC 129, a case where the property of the judgment-debtors having vested in the official assignee, judgment-creditors, who had previously attached a certain part of it obtained an order that notice should be issued to the official assignee to show cause why he should not be substituted for the judgment-debtors as a party, and this notice was given, but without any further notice to the official assignee the property attached was sold in execution.

16. Their Lordships held that the sale was altogether irregular and inoperative, and this for various reasons:

In the first place the property having passed to the Official Assignee it was wrong to allow the sale to proceed at all. The judgment-creditors had no charge on the land, and the Court could not properly give them such a charge at the expense of the other creditors of the insolvents. In the second place no proper steps had been taken to bring the Official Assignee before the Court and obtain an order binding on him and accordingly he was not bound by anything which was done. In the third place the judgment-debtors had at the time of the sale no right, title, or interest which could be sold to or vested in a purchaser, and consequently the respondents acquired no title to the property.

Pausing here for a moment, I may observe that the case was thus one in which the property could not have been sold even if a notice under Order 21, Rule 22 had been given.

17. Their Lordships then referred to Malkarjun v. Narhari (1900) 25 Bom 337, which had been relied upon by the respondents, and before dealing with it, observed:

As laid down in Gopal Chunder v. Gunamoni Dasi (1893) 20 Cal 370 a notice u/s 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 representative of a deceased judgment-debtor.

This would seem to be the basis of the view that their Lordships held that a notice under the section was the foundation of the jurisdiction to sell. But the observation of their Lordships and the implication from it must be confined to the facts of the case before them, for they also observed that in Malkarjun v. Narhari (1900) 25 Bom 337 the Court had jurisdiction to sell, though the decision as to who was the legal representative was erroneous. Raghunath Dass case AIR 1914 PC 129 cannot therefore be regarded as an authority applicable to cases where there is no omission to take out the notice but there are irregularities in serving it.

18. Lord Hobhouse in Malkarjun v. Narhari (1900) 25 Bom 337 pointed out that the Court had jurisdiction to receive the application for execution, though it might have been open to exception, and to decide that the person on whom the notice was served was the tight person, and that therefore in proceeding with the execution, the Court was not acting without jurisdiction:

It made a sad mistake it is true; but a Court has jurisdiction to decide wrong as well as right.... Acting in its duty to make the estate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law.

If the jurisdiction of the Court is not destroyed by an error as regards the identity of the person who legally represented the estate of the deceased, there would seem to be even less reason to bold that it is destroyed by an error as to the residence of the judgment-debtor, especially where (as in this case) the decree-holder is not shown to have proceeded mala fide and gave for the judgment-debtor-respondent the same address as in the plaint and the respondent has made no attempt to assail the ex parte decree against him.

19. The jurisdiction to sell was moreover derived from the mortgage decree itself, while the decree before the Privy Council in Raghunath Dass case AIR 1914 PC 129 was a simple money decree, as was pointed out in Kaniz Mehdi Began v. Rasul Beg AIR 1918 Oudh 379. It seems to me that as against the respondent the execution sale is no more without jurisdiction than the ex parte decree itself--a decree which it is not even suggested is void and must remain perfectly valid until it is set aside (though the respondent can no longer do so) by taking appropriate proceedings on the ground that the summons was not duly served or on appeal, In my opinion therefore the sale cannot be treated as void.

20. The next question is whether the irregularity in the service of the notice, which as I have already shown did not go to the jurisdiction of the executing Court is sufficient by itself to entitle the respondent to vacate the sale. The learned Subordinate Judge regarded the sale as void firstly "for want of notice under Order 21, Rule 22;" but this was not a case of "want of notice" but a case only of irregular service of notice. In Parashram v. Balmukund (1908) 32 Bom 572 there was a total failure to take out the notice u/s 248 of the Code of 1882 (corresponding to Order 21, Rule 22), and Batchelor, J., after pointing out that the irregularity was anterior to the publishing or the conducting of the sale dealt with it u/s 244(c), examined the matter on the merits and set the sale aside on the ground that:

though the sale took place eight years after the decree, no notice was issued to the appellant, who in his application has protested his willingness to pay Rs. 779 for this property which has fetched only Rs. 490.

21. It seems all the more necessary, in a case where the service of notice was merely irregular and the sale is therefore not void, to examine the merits before setting the sale aside. The respondent moreover mentioned Order 21, Rule 90 in his application. If that provision of the law had been applicable he would have had to show that by reason of the irregularity he has sustained substantial injury. It is indeed not the respondents case now that he has established any irregularity in publishing or conducting the sale, though the learned Subordinate Judge held that the sale must be set aside not only for want of notice Order 21, Rule 22, but "owing to material defect in the service of sale proclamation which has resulted in substantial injury." The material defect found by the lower Court was that the sale proclamation for Chakai was served only in the important mauzas of the taluka, though the thana or the taulka (it is not dear which) included 500 or 600 mauzas. To treat this as a material defect however is opposed to the express decision of this Court in Maharaj Bahadur Singh Vs. Rai Bahadur P.C. Lal Chaudhury, , and the learned advocate for the respondent, has been content to rest his case entirely on the looting that the sale must be set aside because there was no proper issue of the notice under Order 21, Rule 22, though he has not accepted the appellants contention, contrary to the finding of the lower Court that the respondent has sustained no injury.

22. Having regard to the view taken by this Court in the cases of Das Narayan Singh v. Mir Mohammad Yusuf AIR 1921 Pat 145 and Fakhrul Islam and Others Vs. Bhubaneshwari Kuar, on the question of jurisdiction, and having regard also to the objects of the notice under Order 21, Rule 22 namely to give the judgment-debtor an opportunity to show cause against the execution (e.g., lapse of time or adjustment) and also to give him an opportunity to satisfy the decree before execution issues, it seams to me that the appellant is right in his contention not only that the jurisdiction of the executing Court did not fail merely by reason of the irregularity in the service of the notice, but also that the sale ought only to be set aside if the respondent can show that he has sustained any injury by reason of the irregularity. (The judgment then proceeded to determine whether any substantial injury was caused, and proceeded). In my opinion, the respondent has entirely failed to show that he has sustained any injury whatsoever by reason of the irregularity in serving the notice under Order 21 Rule 22.

23. I would accordingly reverse the order of the lower Court and allow the appeal with costs of both Courts. Hearing fee in this Court, ten gold mohurs.

Macpherson, J.

I agree to the order proposed. The facts are clear. The notice under Order 21, Rule 22 to the judgment-debtor, Jaideo Rai, was issued to the address at which the decree-holder had secured the mortgage decree against him in respect of which no appeal and no application under Order 9, Rule 13 had been preferred, and the notice was served at that address as if it had been Jaideo Rais residence. Actually it was not his residence nor had it ever been, his nearest house being eight miles distant in an adjoining district; it was merely the residence of cousins of his father who ware co-judgment-debtors with him. The mistake as to address was quite bona fide on the part of the decree-holder and the Court when it proceeded with the execution had no reason to doubt that good service had been made on Jaideo Rai.

24. Quite certainly Jaideo Rai took no harm at all from non-receipt of the notice under Order 21, Rule 22 the sale proclamations were duly made and the prices at which the properties were sold at auctions were not only adversely affected by any irregularity in publishing or conducting the sale or by the defect under Order 21, Rule 22 but were remarkably high and it can be predicated with certainty that they would not have been higher if the notice of the application for execution had been served on Jaideo Rai. It is not shown that he had notice of the application for execution before the Court directed sale proclamation to issue nor indeed that he knew of the sale proclamation though it would be almost incredible that he did not know of it long before the date of sale. But however that may be, non-receipt of notice unquestionably made no difference whatever to him so far as the sale prices were concerned under no circumstances would they have been higher.

25. No doubt cases can be conceived where the reverse would bathe case, even where mala fides on the part of the decree-holder is negatived. One such would be where the judgment-debtor would have been able to avert or even had reasonable chance of averting the sale Jaideo Rai could not have averted the sale by payment or otherwise nor by any measures secured a higher price at auction nor was there any reasonable chance of his doing so. In the circumstances of the present case, then, in which it is established that the decree-holder acted bona fide, the procedure of the Court itself was regular and result of the execution was in no way prejudicial to the judgment-debtor-respondent, it is hard to see why it should be held that the execution proceedings were invalid because the requisite notice which in fact would not have benefited the judgment-debtor, was issued to an incorrect address.

26. There is much conflict on the point of law and no clear lead--personally I am not prepared to say that in law the Subordinate Judge had no jurisdiction to proceed with the execution, so that any sale held by him would be void. On the whole, I consider that he had jurisdiction and the proper course is to decide each case of defect under Order 21, Rule 22 in accordance with its own circumstances. Here I find no ground for setting aside the very fair sale which has taken place and I would allow the appeal.

27. It was reprehensible on the part of the Subordinate Judge to make alterations or "corrections" in the record of the depositions on the view we take the alterations have turned out to be immaterial and as the officer has retired, we do not consider that any action is necessary.