Modi, J.—This is an appeal by one of the judgment-debtors Mst. Mehtab Bai against an order refusing to set aside a sale under the provisions of O. 21 R. 90, C.P.C. 2. The material facts leading up to this appeal may shortly be stated as follows. Respondent No. 1 Mist. Motan Bai obtained a mortgage decree against the appellant Mst. Mehtab Bai and respondent No. 3 Poonamchand in a suit for sale. The said Poonamchand was admittedly a co-mortgagor. The final decree was passed on the 22nd December, 1954. This Poonamchand was a natural-born son of the deceased Gulabchand, husband of Mst. Mehtab Bai, and has obviously been living at all material times in the house under mortgage. He has, however, been described in these proceedings as son of Jagannath, and it is admitted between the parties that the latter was the uncle of Gulab Chand. During the course of arguments in this Court, we have been told that Poonam Chand had been given in adoption to Jagannath; but this aspect of the matter was never brought in issue during these proceedings, and the decision of this appeal, in our opinion, does not turn on this circumstance. We have merely mentioned this in order to avoid all confusion later on. 3. The decree-holder applied for sale of the mortgaged house in execution of this decree. A notice under O. 21 R. 66 C.P.C. was ordered to be issued by an order of the Court dated the 12th April 1955, on both Mst. Mehtabbai and Poonamchand mortgagors. This notice was served personally on Poonamchand. But so far as Mst. Mehtab Bai was concerned, it was served by affixture on the outer-door of her house, and there is evidence on the record to show that Poonamchand and Mst. Mehtab Bai and another son of Mst. Mehtab Bai namely Premchand all lived in this house jointly. The service on Mst. Mehtab Bai was, therefore, considered to be sufficient by an order of the court dated the 2nd July, 1935, and a sale proclamation under O. 21 R. 66 C.P.C. was ordered to issue, and the sale was fixed in the first instance for the 5th, 6th and 7th September, 1955. It is not in dispute before us that the sale was stayed in connection with another suit which had meanwhile been instituted by one Padamchand (another son of Mst. Mehtab Bai) against Mst.
It is not in dispute before us that the sale was stayed in connection with another suit which had meanwhile been instituted by one Padamchand (another son of Mst. Mehtab Bai) against Mst. Mehtab Bai and Poonamchand and the present decree-holder. The stay was subsequently removed, and, consequently, by an order of the court dated the 20tb November 1957, fresh proclamation was ordered to issue, and the sale was fixed for the 20th to 22nd January, 1958. The dates for sale were subsequently extended and the sale was eventually knocked down in favour of respondent No. 2 Dwarkadas for a sum of Rs. 27,800/- on the 13th February, 1958. This sale was confirmed on the 17th October. 1959. Meanwhile two applications were filed one by Mst. Mehtab Bai and the other by Poonamchand under O. 21 R. 90 C.P.C. for setting aside the aforesaid sale. The sale was attacked on number of grounds; but it is enough to mention three of them as these are the only grounds which have been pressed before us. The first is that the sale proclamation was not signed by the learned District Judge himself who was the presiding officer of the court but by his Munsarim, and, therefore, the sale was entirely void and illegal. The second is that the notice under O. 21 R. 66 was not properly served on Mst. Mehtab Bai, and, therefore, the terms mentioned in the sale proclamation never properly settled and the learned District Judge had not applied his mind to them. The third objection is really an offshoot of the second, and it is contended that no proper estimated value of the property under sale or the rental value thereof was mentioned in the sale proclamation. It was, therefore, contended that the house in question which was really worth sixty to sixty-five thousand rupees had been sold only for Rs. 27800/-, and thereby a substantial loss was caused to the judgment-debtors. 4. These objections were traversed by the decree-holder as well as the auction-purchaser, and the learned District Judge, after recording the evidence of the parties, eventually came to the conclusion that the objectors had failed to substantiate the grounds raised by them and in any event it had not been proved that a substantial injury had been caused to them, and in this view of the matter the objections were dismissed.
One of the judgment-debtors, namely, Mst. Mehtab Bai has consequently come up in appeal to this Court. 5. The same grounds which were urged before the court below have been repeated before us. Now we propose to deal with the second ground first, namely, whether the notice on Mst. Mehtab Bai under O. 21, R. 66 had been properly served on her. There is material on the record to show that Mst. Mehtab Bai is a Pardanashin woman, and it was on this account that an application had been moved on behalf of her in the court below that she should be examined by commission. As already stated, the notices under O. 21, R. 66 were ordered to be issued on the 12th April 1955, for the 2nd July, 1955. Mohammed Yasin was the process-server who took the notice to serve on Mst. Mehtab Bai.. We have his report dated the 23rd June, 1955, to the effect that he had been to Mst. Mehtab Bais house on the 2nd, 6th and 13th June, 1955, and on his inquiries he was told that she had gone elsewhere to her relations, and that it was not known when she would return. It is mentioned in the report that the process-server was accompanied by the. Mukhtar-i-am of the decree-holder when he went to serve the notice. It is further mentioned that on the last-mentioned date, namely, the 13th June, 1955, the process-server met Poonamchand, the other judgment-debtor and natural-born son of the appellant. The former wanted to give the summons to Poonamchand but he refused to accept it. Therefore, he went again on the 15th June, 1955, to Mst Mehtab Bats house and he again made an effort to serve the notice personally on her but she was not available and some body from inside the house gave the reply that she had gone elsewhere, and it was in these circumstances, according to the process-server, that he affixed a copy of the notice on the house of Mst. Mehtab Bai, which was called Poonam Bhawan. This report was attested by two persons, named. Roopchand and Badrilal. There is also an endorsement on the notice under the signature of Dhoopchand, Mukhtar-i-am of Mst. Motan Bai decree-holder that he had accompanied the process-server a number of times in connection with the service of the notice on Mst.
Mehtab Bai, which was called Poonam Bhawan. This report was attested by two persons, named. Roopchand and Badrilal. There is also an endorsement on the notice under the signature of Dhoopchand, Mukhtar-i-am of Mst. Motan Bai decree-holder that he had accompanied the process-server a number of times in connection with the service of the notice on Mst. Mehtab Bai; but every time they went they were told by Poonamchand and Premchand sons of Mehtab Bai that she was not there, and, therefore, he requested the process-server that service be effected by affixture.. The process-server was examined as a witness on behalf of the decree-holder as D. W.3. He has corroborated this report. 6. It is strenuously contended by learned counsel for the appellant that this service on Mst. Mehtab Bai was not sufficient in law, the reason alleged being that the process-server should have used due and reasonable diligence in order to effect a personal service on Mst. Mehtab Bai, and that if he had done so, there should have been no difficulty in getting the service effected personally on her. It is true that, broadly speaking, service to be effective must be made personally on the person concerned. The difficulty arose in this case, however, because the person to be served, viz., Mst. Mehtab Bai, was a woman and a Pardanashin woman at that, and a personal service on a person of this type was not easy if the person concerned or those interested in her were so minded. The question in these circumstances is whether the kind of service that was effected on her namely, by the affixture of the notice on the outer wall of her house, should he held to be sufficient, as it was indeed so held by the learned District Judge. We may in this connection draw attention to the provisions contained in O. 5 rules 15 and 17 C. P. C. Rule 15 provides that— "Where in any suit the defendant cannot be found and has no agent empowered to accept service of the summons on his behalf, service may be made on any adult male member of the family of the defendant who is residing with him." It is nobodys case that Mst. Mehtab Bai had any agent empowered to accept any service in the present case.
Mehtab Bai had any agent empowered to accept any service in the present case. Therefore, a service on Poonamchand or Premchand, her sons, who were residing with her, if effected on them should have been good service, and in such a case it would not have been open to Mst. Mehtab Bai to say that no personal service had been effected on her. Unfortunately, however, Poonamchand and Premchand refused to accept service. In these circumstances, we are further of opinion that O. 5 R. 17 is clearly attracted into application because in such a case it may be reasonably predicated of a Pardanashin woman sought to be served with a notice that the process-server was not able to find her in spite of having used all his due and reasonable diligence, and, where this is so, this rule clearly lays down that the serving officer shall affix a copy of the summons on the outer door or some other conspicuous part of the house in which the person to be served ordinarily resides or carries on business or personally works for gain, and shall then return the original to the court from which is was issued with a report that he had so affixed the copy, mentioning the circumstances under which he did so, and the names and addresses of the persons in whose presence the copy was so affixed. 7. Thus it was held in Khiroda Sundari Dasi vs. Nabin Chandra Saha (1), that where either by reason of the custom of the country or for any other reason it is impossible for the serving officer to obtain access to the person to be served, such a case may, without undue stretch of language, be held to be covered by the expression "where the defendant cannot be found by the serving officer" occurring in O. 5 R. 17. It was further held that in such a case, a valid service is effected on a Pardanashin woman when the serving officer affixes a copy of the summons on the outer door or some other conspicuous part of the house in which she ordinarily resides. This would of course be subject to the further condition that such a woman has no agent duly empowered by her to accept service on her behalf and has also no adult male member in her family upon whom service may be effected. 8.
This would of course be subject to the further condition that such a woman has no agent duly empowered by her to accept service on her behalf and has also no adult male member in her family upon whom service may be effected. 8. The same view was taken in Haidari Khanam vs. Husnara Begum (2) wherein it was held that as it was not always practicable to effect personal service of a notice on a Pardanashin woma|n, the affixture there at the residence of the woman, may be taken to be sufficient service. 9. The same view was taken in Najmunissa vs. Jagmohan (3). 10. Learned counsel for the appellant drew our attention to Tripura Modern Bank vs. Bansen & Co. (4). In this connection ; but in so far as this case is relevant for our present purpose, it will be seen that the law laid down there is founded on O. 5, R. 17 as amended by the Calcutta High Court and in this very authority reference has been made at p. 788 to Khiroda Sunduri vs. Nabin Chandra (1) wherein the view was taken that where the defendants were Pardanashin Hindu ladies to whom the peons could not possibly get access, the provision of O. 5, R. 17 were satisfied inasmuch as it would be said with respect to them that the serving officer could not find them after using all due and reasonable diligence. This was the law laid down with reference to Rr. 17 of O. 5, as it stood before the amendment, and as it stands so far as we are concerned. 11. Haying regard to this view of the case law, we have arrived at the conclusion that the notice under O. 21, R. 66 C.P.C. was properly served on Mst. Mehtab Bai the appellant. 12. We may also point out in this connection that according to the process server Mohammed Yasin, when in spite of all efforts, he could not obtain access to Mst. Mehtab Bai, he had offered the notices to her son Poonamchand, and that the latter had declined to accept the same, and it is worthy of note in this connection that when Poonamchand came into the witness-box, he said nothing in his deposition to controvert this part of Mohammed Yasins statement.
Mehtab Bai, he had offered the notices to her son Poonamchand, and that the latter had declined to accept the same, and it is worthy of note in this connection that when Poonamchand came into the witness-box, he said nothing in his deposition to controvert this part of Mohammed Yasins statement. We are fully satisfied, therefore, that by the combined operation of rules 15 and 17 of O. 5, the service on Mst. Mehtab Bai was perfectly proper in this case, and consequently we over-rule this contention of learned counsel for the appellant. 13. This brings us to the first contention raised on behalf of the appellant as to whether the learned District Judge had himself settled the terms of the sale-proclamation or applied his mind thereto, and, further, whether the said proclamation was lawful and proper inasmuch as it had been signed by the Munsarim of the court and not by the lear-ned District Judge himself. So far as this aspect of the case is concerned, it is well to beat in mind that it was by an order of the 12th April, 1955, that the learned District Judge, had directed notice under O. 21, R. 66 to issue against the appellant, and by the same order he had called upon the decree-holder respondent to notify to the court the terms for the sale-proclamation. These terms were accordingly intimated to the court by the decree-holder by an application dated the 29th April, 1955. It was thereafter on the 2nd July,-1955, when counsel for the decree-holder was present in court and no body put in appearance on behalf of any of the judgment-debtors in compliance with the notices of the court which, as we have held above, were duly served on both the judgment-debtors, that the court ordered that the sale-proclamation do issue and the sale was fixed for the 5th to 7th September, 1955, at 10 A.M. 14.
It would clearly appear from the facts set out above that the terms to be contained in the sale proclamation were before the court from the 29th April, 1955, upto the 2nd July, 1955, and we are altogether unable to accept the argument of learned counsel for the appellant to the effect that the learned District Judge had not applied his mind to the terms put forward by the decree-holder when he ordered the sale proclamation to issue on the 2nd July, 1955. We emphatically decline to accept the suggestion that the learned District Judge had not looked at the terms before the issue of the sale proclamation. In fact, this particular branch of the argument does not appear to us to have been pointedly raised before the learned District Judge else we should have had his own reaction to it. Be that as it may, we are of opinion that there is no substance in his contention either and we over-rule it. 15. The next question under this head is whether the proclamation was a nullity inasmuch as the learned District Judge had not signed it himself and the Munsarim of the Court had signed it. The answer to this question would depend upon whether the Munsarim had the authority to do so. Learned counsel for the appellant in this connection strongly relied on the circumstance that there was no proof on the record to show that the Munsarim had been delegated such authority. He, therefore, placed strong reliance on Ramdayal vs. Mahtab Singh (5) in support of his contention wherein it was held with reference to sec. 222 of Act No. VIII of 1859 (the corresponding provision of O. 21 R. 24 of the present Code) that the sale in execution at which the plaintiff there had bought the property in question was wholly void inasmuch as there was an absence of the signatures of the Judge from the warrant of attachment, and that that vitiated the proceedings in execution ab initio. It was held by Straight J. of the Allahabad High Court in this case that the language of sec. 222 was plain and positive, and it was impossible to hold that the order directing attachment was not a warrant and that as such it required the Judges signature under the relevant law.
It was held by Straight J. of the Allahabad High Court in this case that the language of sec. 222 was plain and positive, and it was impossible to hold that the order directing attachment was not a warrant and that as such it required the Judges signature under the relevant law. When the matter was carried in appeal by the plaintiff to the Privy Council, all that their Lordships said was, in delivering their judgment, that the judgment of the High Court was correct and the appeal was dismissed. We have given our careful consideration to this case and are of the opinion that it is altogether distinguishable and can therefore have no application to the case before us. R.508 of the General Rules (Civil) issued by this Court lays down, inter alia, that the duties of the Munsarim would include, if the court appoints him in this behalf, to sign routine orders, summonses and notices, which the Presiding Judge is not himself required to sign under any law or order in force. We may then refer to O. 21 R. 24 C.P.C. which lays down that every process for execution shall be signed by the Judge or such officer as the court may appoint in this behalf, and shall be sealed with the seal of the court and delivered to the proper officer to be executed. There can be no question that the Munsarim is the chief ministerial officer of the court and under R. 24(2), it would be open to him to sign a proclamation provided that the court may authorise him to do so, inasmuch as the process is not required by law to be signed by the Judge alone and a delegation of authority is clearly contemplated and perfectly possible under the rule itself. 16. Now Form No. 29 of a proclamation of sale under O. 21. R. 66 as given in Appendix-E of the Code clearly shows, in our opinion, that a proclamation of sale is essentially a notice to the public that an order has been passed by the court for the sale of a certain property which is mentioned in the proclamation and that the sale would be by public auction, and, therefore, the public generally are invited to bid at the auction for the purchase of the said property. 17.
17. Having given our careful consideration to this aspect of the case, we are of opinion that under O. 21, R. 24 C. P. C. read with clause (3) of Rule 508 of the General Rules (Civil) laid down by this Court, the Munsarim who is the chief ministerial officer of the court would be within his authority in signing such a proclamation provided of course there is an order of the court in compliance with clause (3) of the said rule 308. It is not the contention of learned counsel for the appellant that such an authorization was not available to the Munsarim in the present case. In fact it is our everyday experience that routine orders, summonses and notices in the court of the District Judge are normally signed by the Munsarim and not by the presiding officer himself. 18. We may also point out in this connection that under illustration of sec. 114 of the Evidence Act, there is a presumption that judicial and official acts have been regularly performed. This presumption applies with full force in the present case particularly because there is not an iota of evidence led on the side of the appellant to displace the same, and we see nothing which could have prevented the appellant from leading evidence to show that no authorization under clause (3) of rule 508 of the General Rules (Civil) was available in this case to the Munsarim to sign the proclamation. This contention also, therefore, fails and is hereby over-ruled. 19. The last contention raised by learned counsel is that as Mst. Mehtab Bai the judgment-debtor appellant could not be and was not present, no proper estimated value of the property to be sold could be mentioned in the sale proclamation, and, similarly, no rental value thereof was also given therein, and a proper value in these respects could only be settled in the presence of Mst. Mehtab Bai. We have already held above that Mst. Mehtab Bai was duly served with the notice under O. 21, R. 66 on the 15th June, 1955. The terms of sale in response to the courts order dated the 12th April, 1955, had been submitted by the decree-holder on the 29th April, 1955, and the sale proclamation had actually been ordered to issue on the 2nd July, 1955. In these circumstances, there was ample opportunity for Mst.
The terms of sale in response to the courts order dated the 12th April, 1955, had been submitted by the decree-holder on the 29th April, 1955, and the sale proclamation had actually been ordered to issue on the 2nd July, 1955. In these circumstances, there was ample opportunity for Mst. Mehtab Bai to arrange appearance on her behalf in court by a duly constituted power of attorney if she so chose. It may also be mentioned in this connection that the sale which was ordered to take place in the first instance on the 5th to 7th September, 1956, actually came to be stayed in connection with the suit filed by one of the sons of Mst. Mehtab Bat in relation to this very property and to which she herself was a party and a fresh proclamation was then issued on the 20th November, 1957. There is material on the record to show that this was posted on Mst. Mehtab Bais house on the 7th December, 1957, and the property was on sale for a period of over a month until it was knocked down in favour of the respondent decree-bolder on the 13th February, 1958. We may also mention in this connection that the estimated value of the property under sale was mentioned in the sale proclamation, and this was a sum of Rs. 32,000/-. From the evidence which is on record, it is fairly obvious that this property had never been rented out in its entirety, and, therefore, it was difficult to put its rental value in the sale proclamation. We may also point out that from the entire material which has been brought on the record on behalf of both the parties, it is impossible for us to hold with any semblence of justification that the value of property under sale as mentioned in the sale proclamation was in arty manner unduly low. From alt these facts, we come to two conclusions: (1) that there was ample opportunity for Mst. Mehtabbai to object to the estimated value of the property under sale if she chose to do so, or if she had any cogent reasons therefor, and she, having not done so, cannot be heard to complain that the value mentioned was far removed!
Mehtabbai to object to the estimated value of the property under sale if she chose to do so, or if she had any cogent reasons therefor, and she, having not done so, cannot be heard to complain that the value mentioned was far removed! from the actual market value of the property, and (2) that the estimated value which was in fact mentioned in the sale proclamation was fair approximate value of the property in question. We cannot possibly forget that the court had ordered the proclamation to issue only after the notice under O. 21, R. 66 had been duly served on her. Having regard to all these circumstances, we are clearly of opinion that there is no force in this objection either. 20. It only remains for us to mention, before concluding this judgment, that learned counsel for the appellant has himself conceded, and in our opinion, rightly, that his clients allegation that she has been put to any substantial injury or loss because of the alleged irregularities in the publishing or conducting of the sale has not been established from the material which has been brought on the record. 21. For the reasons mentioned above, this appeal fails and we hereby dismiss it with one set of costs to the contesting respondents.