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Allahabad High Court
Chandi Prasad vs Mt. Jumna on 13 April, 1927
Equivalent citations: AIR 1928 All 74


1. This defendant’s appeal arises out of a suit for declaration that the decree in suit No. 185 of 1918 was not binding on the plaintiff, that the sale in execution of the house was also not binding on the plaintiff and that the plaintiff is owner of the house.

2. The plaintiff, at one stage of the suit No. 185 of 1918, was made a party to the execution proceedings, but was later exempted. A lengthy written statement was filed, but briefly the case as put before us for the appellant was that the plaintiff was not a necessary party, that the decree was obtained against the person who was the legal representative of the mortgagor and the plaintiff had no right in the house at all.

3. The facts are intricate, and, in order to appreciate the points that we have to decide, it will be necessary to set them out in considerable detail. They will be more easily understood if we set them out in chronological order. Parbhu Lal was the original owner of the house. His wife was Mt. Sabo, and they had a daughter, Mt. Jumna.

4. On the 12th August 1924, Parbhu Lal mortgaged this house to Chandi Prasad.

5. Whether before or after the date of this mortgage we have no information, but probably subsequent to it, Ram Dayal obtained a simple money decree against Parbhu Lal, and in pursuance of that decree attached the house.

6. On the 23rd September 1916, Parbhu lal died. We have no information as to whether he died after or before the order for sale, but it is clear that he died, at any rate, before the sale proclamation had issued. Some attempt was made to suggest that he might have been alive at the time of the drawing up of the proclamation under Order 21, Rule 66, and died prior to the actual issue thereof; but no attempt has been made in the lower Courts to show that there was any interval between the drawing up of the proclamation under Order 21, Rule 66, and the actual issue thereof. We must, therefore, take it that Parbhu Lal died after the order for sale had been made, but prior to the drawing up of the proclamation under 0. 21, Rule 66, and that, therefore, notice under that rule could, have been issued to him.

7. On the 29th September 1916, the sale proclamation was prepared, or, as it is described in the judgment of the lower appellate Court, issued without the legal representative of Parbhu Lal, who at that time was Mt. Sabo, having been brought on the record, and was duly followed by a sale.

8. On the 13th December 1916, the sale took place, and Manni Lal purchased the house; but he appears never at any time to have obtained possession. Neither side is able to offer any explanation of why Manni Lal did not apply for actual possession.

9. The next step was that in 1918 Chandi Prasad brought the suit No. 185 of 1918 on this mortgage, and impleaded both Mt. Sabo and Manni Lal. On the 19th August 1918, he obtained a preliminary decree On the 22nd January 1919, he applied for a final decree to be drawn up. On the 26th January 1919, Mt. Sabo died. She had possession of the house at her death, and on her death Mt. Jumna succeeded as heir to her after Parbhu Lal, and continued to occupy the house. Mt. Jumna, however, was not at this stage impleaded as the legal representative now of the mortgagor. On the 25th February 1919, the final decree was prepared. Several applications for execution were made against Manni Lal and Mt. Sabo, though the latter was dead. But we have no information as to what steps were taken on those applications.

10. On the 27th May 1919, Mt. Jumna was impleaded as a party. She made several objections, one of which was that she had not been a party to the preparation of the final decree. On the 6th February 1920, the decree-holder decided to exempt her, Chandi Prasad’s vakil stating that:

Mt. Sabo was not a necessary party, her rights have been sold and the purchasers were party; therefore the objector’s (Mt. Jumna’s) name be struck off.

11. In the beginning of 1921 Manni Lal decided to try to obtain possession of the house, and brought a suit against Mt. Jumna, which was dismissed on the 16th May 1921, on the ground that Mt. Sabo, who was the legal representative of Parbhu Lal, after his death had not, upon the death of Parbhu Lal, been made a party to the execution proceedings under Ram Dayal’s decree. To this suit of Manni Lal Chandi Prasad was not a party. A certified copy of the judgment of the trial Court is on the record, and so far as our information goes, Manni Lal did not appeal against that decree, but it has been found by the lower appellate Court-and we agree with it-that there is nothing on the face of the judgment to show that it was a collusive decree, whether that would or would not have any effect on this suit.

12. On the 22nd July 1919, sale took place in execution of Chandi Prasad’s decree, and Chandi Prasad himself purchased the house. On the 8th November 1922, Chandi Prasad applied to get possession, and hence the present suit.

13. The case for the plaintiff, Mt. Jumna, is, as it was in the suit brought against her by Manni Lal, that purchase by Manni Lal in execution of the decree of Ram Dayal was a nullity, because, after the death of Parbhu Lal his legal representative, Mt. Sabo, had not been brought on the record; that, though she herself (Mt. Jumna) at one stage in the execution proceedings in the decree of Chandi Parsad had, after the death of Mt. Sabo been made a party as the then legal representative of the mortgagor, Parbhu Lal, yet she had been exempted and, therefore treated as if she had never been made a party, and the decree of Chandi Prasad was inoperative against her; and finally that the decree of Chandi Prasad against Manni Lal was inoperative, as the sale to him in execution of the decree of Ram Dayal was a nullity, and consequently he was not a legal representative of Parbhu Lal, the mortgagor. For the defence and for the appellant here it is frankly admitted that, if the execution proceedings subsequent to Parbhu’s death, including the sale in favour of Manni Lal, were null and void, then Manni Lal was not the legal representative of Purbhu Lal, the mortgagor, and that, as Mt. Jumna must be treated as if she had never been made a party to the execution proceedings in the decree of Chandi Prasad, her suit must succeed, as it has succeeded in both the Courts below.

14. The defendant-appellant, therefore, has to establish that execution proceedings subsequent to Parbhu’s death were not null and void. There is no question hereof a mere irregularity in the sale requiring to be supported by proof of substantial injury before the sale could be set aside under Order 21, Rule 90. The question is whether valid execution proceedings could continue in the absence of a living judgment-debtor or his legal representative.

15. Before considering the judicial authorities that have been quoted to us we will refer to the relevant sections and rules, of the Civil Procedure Code. The first of these is Section 50. That section in our view does not call in any way for the issue of a notice beyond that it suggests that the law contemplates there being on the record either a living judgment-debtor or his legal representative. With the exception of this inference to be drawn from it all that it does is to inform a decree-holder that if the judgment-debtor has died before the decree has been fully satisfied he can, if he wishes to execute the decree, proceed against the judgment-debtor’s legal representative. How he is to proceed is laid down in Order 21, Rule 22. That provides that if an application for execution is made against the legal representative the latter shall have notice to show cause. In reference to this it has been suggested that it only applies where an application for execution is being made, and does not apply to the proceedings consequent on that application, and that, therefore, it would have no applicability to a case where the judgment-debtor was alive at the time of the application for execution and died subsequently to the commencement of the execution. We are, however, not called upon to decide this particular point, for in the present case the first step that had to be taken after the death of the judgment-debtor in this case was the drawing up of the proclamation. Order 21, Rule 66, expressly requires that the proclamation shall be drawn up after notice to the decree-holder and the judgment debtor. It was, therefore, imperative on the Court to issue a notice to the judgment-debtor. If the sale in the absence of a notice under Rule 66 was not a nullity, then under Order 21. Rule 90 it would be necessary for the legal representative of a judgment-debtor to show that he had sustained, substantial injury by reason of the irregularity. In our view the matter is concluded by the decision of their Lordships of the Privy Council of 18th May 1914, reported in Raghunath Das v. Similar Das A.I.R. 1914 P.C. 129. That was a case which arose under the old Code of 1882, but the view of their Lordships was expressed in unequivocal terms that the failure to serve a proper notice on the legal representative rendered the sale “altogether irregular and inoperative.”

16. It was moreover a case not of failure to serve a notice of the application for execution but the passing of the rights of the judgment-debtor to the official assignee in the middle of the execution proceedings. In that case execution proceedings had reached the stage of an order for sale having been passed. Before the sale had actually taken place an insolvency order was passed against the judgment-debtor whereby the property vested in the official assignee. The decree-holder took a stop by way of serving a notice on the official assignee but the notice was merely to show cause why he, the official assignee, should not be substituted for the judgment-debtor and did not give him specific notice to resist the execution proceedings if he desired to do so. The official assignee ignored the notice and subsequently the decree-holder obtained an order from the Court bringing the official assignee on to the record and an order for the sale to proceed. It proceeded and the decree-holder himself purchased. Subsequently the official assignee by due process of law himself sold the property. As against the second purchaser their Lordships held that the first sale by reason of the failure to serve a proper notice on the official assignee to resist the execution proceedings if he so wished, was a complete nullity. At page 80 (of 12 Cal.-Ed.) of the report their Lordships said:

At any the execution could not proceed until the official assignee had been properly brought before the Court, and an order binding on him had been obtained.

17. And again at p. 22 they say:

Their Lordships are of opinion that this sale was altogether irregular and inoperative,

and they gave three reasons for that view, all of which were apparently regarded as equally conclusive. In reference to the matter before us now they say:

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.

18. In our view this concludes the present question.

19. It is, however, desirable to say a few words in reference to the argument, which was addressed to us, founded on the Full Bench decision of this Court in Shea Prasad v. Hiralal [1890] 12 All. 440. In our view the whole of that argument was really beside the point. In that case the judgment-debtor had died after the proclamation of the sale and his legal representative was not brought on the record or served with a notice before the sale took place. Pour of the learned Judges held that if the judgment-debtor had (tied before the attachment took place the decree-holder was bound to proceed to bring the legal representative on the record; but here, as in that case, the property had been attached before the death of the judgment-debtor, the property was in the custody of the Court and the sale could properly proceed without the legal representative being brought on the record. Whether if this decision was still binding on us we should be prepared to accept it without asking for the matter to be referred again to a Full Bench for fresh consideration, we need not determine, for there is another element in that case which indicates that it is clearly no longer binding on us. The four Judges, (Mahmood, J. dissented) were clearly influenced in the decision at which they arrived by the consideration that they were unable to find throughout the Code any express provision requiring a fresh notice to be served on the judgment-debtor. It is true that at that time there was no express provision requiring notice to be served on the judgment-debtor either preparatory to drafting the proclamation or after the proclamation had been drafted prior to the sale. In the present case, however, the facts are to this extent different that the judgment-debtor died not after the proclamation to the sale had been drafted but before the proclamation, and a provision has been introduced into the Code of 1908 in Order 21, Rule 66 corresponding to the Section 287, old Code requiring the service of notice on the judgment-debtor. How far the insertion of this provision would override the decision of the Pull Bench in a case where the judgment-debtor died after the sale proclamation it is not necessary for us to determine. We were referred further to a decision in Bhagwan Das v. Jugal Kishore [1920] 42 All. 570, as being a case in which it was held that the decision of the Full Bench in Sheo Prasad v. Hiralal [1890] 12 All. 440, was still law under the present Code. But that has no bearing on the present case at all. All that occurred in the latter Allahabad case was that the Division Bench which decided that case relied on the decision in the Full Bench that an attachment did not necessarily abate owing to the death of the judgment-debtor, and execution proceedings would not have to be commenced de novo. The only other decision with which we were pressed was that in Dora Swami v. Chidambaran A.I.R. 1924 Mad. 130, which was, however, overruled in the Full Bench decision of the same Court in Raja Gopala v. Ramanujachariar A.I.R. 1924 Mad. 431, and does not call for further notice.

20. In the result, in our view, the plaintiff’s suit was rightly decreed and this appeal is dismissed with costs.

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