JUDGMENT
1. This appeal is brought on behalf of the auction purchaser Jagarnath Raut, against the brder of the Additional Subordinate Judge of Arrah, dated the 22nd November, 1956 affirming the order of the Munsif of Buxar, dated the 31st January, 1956, setting aside the sale of the property held in an execution case, under the provisions of Section 47 of the Code of Civil Procedure.
2. It appears that respondent No. 1, the
Commissioners of Buxar Municipality, brought a
Small Cause Court suit against one Jugal Kishore
Singh of village Chaugain for realising arrears of
municipal taxes. The suit was instituted on the
2nd April 1953, against the said Jugal Kishore
Singh. Later on the plaintiff applied for amending
the plaint on the ground that Jugal Kishore Singh
was dead before the presentation of the plaint, and
the son of Jugal Kishore Singh, namely, Girishwar
Prasad Singh, should be substituted in place of
Jugal Kishore Singh. The Court ordered amend
ment of the plaint “subject to the law of limita
tion”.
Notice of the suit was duly served upon the substituted defendants, who did not, however, contest the case. Accordingly a decree was granted in favour of the plaintiff-respondent on the 26th June, 1953, In execution of this decree the property in dispute was put to auction and it was ultimately purchased by the appellant Jagarnath Raut on the 5th May, 1955. The judgment-debtor Girishwar Prasad Singh filed an application for setting aside the sale on the 25th July, 1955. The application was allowed by the executing court on the ground that the notice under Order 21, Rule 22, was not served and the property was sold for a grossly inadequate price.
The lower appellate court affirmed the order of the executing court on the ground that the decree granted by the Small Cause Court in favour of the Commissioners of Buxar Municipality against Girishwar Prasad Singh was a nullity and the appellant also sustained substantial injury on account of the execution sale because the property was sold for a grossly inadequate price. On the question, of limitation the view of the lower appellate court was that the case is governed not by Article 166 of the Limitation Act but by Article 181 of the Limitation Act, because the decree of the Small Cause Court was a nullity.
3. In support of this appeal learned counsel who appeared on behalf of the appellant submitted in the first place that the case is governed by Article 166 of the Limitation Act and the application of the judgment-debtor to set aside the sale should have been dismissed by both the lower courts on the ground of limitation. It was conceded by learned counsel that if the decree of the Small Cause Court was a nullity then the case is governed by Article 181 of the Limitation Act and the decision of the lower appellate court would be right.
The question, therefore, presented for determination in this appeal is whether the decree of the Small Cause Court in favour of the Commissioners of Buxar Municipality is a nullity in law. The argument put forward on behalf of the respondents is that the plaint in the Small Cause Court was presented on the 2nd, April, 1953, against Jugal Kishore Singh who was dead on that date and, therefore, the plaint was a nullity and there was no jurisdiction in the Small Cause Court to allow an amendment of that plaint on the 17th April, 1953, and substitute the name of Girishwar Prasad Singh in place of his deceased father Jugal Kishore Singh.
In support of this argument learned counsel for the respondents relied upon a decision of the Madras High Court in Veerappa Chetty v. Ponnen, ILR 31 Mad 86, a decision of the Calcutta High Court in Bejoy Chand Mahatap v. Amulya Charan Mitra, AIR 1914 Cal 895 and a decision of the Sind Chief Court in Municipal Corporation, Karachi v. Baradio Jumoo Mughal, AIR 1948 Sind 20. The leading case on the point is the Madras case, ILR 31 Mad 86 for the principle laid down in that case has been the basis for the decision in AIR 1914 Cal 895 and AIR 1946 Sind 20.
In our opinion the Principle laid down by the Madras High Court in, ILR 31 Mad 86 is no longer authoritative in view of the introduction of Section 153 of the Code of Civil Procedure by the enactment of the new Code in 1908. That section provides that “the Court may at any time, and on such terms as to costs or otherwise as it may think fit. amend any defect or error in any proceeding in a suit, and all necessary amendments shall be made for the purpose of determining the real question or issue raised by or depending on such proceeding.
It is undoubtedly a correct proposition of law that a suit cannot be instituted even under the present provisions of the Civil Procedure Code against a dead person. But it is a different thing to say that a plaint instituted in such a suit cannot be amended within the Period of limitation upon the application of the plaintiff to implead the legal representatives of the deceased defendant as party defendants, provided the suit is not barred by limitation against them on the date of the application.
In our opinion the terms of Section 153 of the Code of Civil Procedure give sufficient authority to the Court to allow an amendment of this description. The true legal position is that the Court is treating the amendment petition as if it is a new plaint presented against new parties on the date on which the application for amendment is made. This view is supported by a decision of a Full Bench of the Madras High Court in Gopalakrislinayya v. Lakshmana Rao, AIR 1925 Mad 1210. It appears that in that case an appeal was presented against a person who was dead on the date of presentation of the appeal.
It was pointed out by the Full Bench in that case that though the appeal may be incompetent because of the dead person being named as a respondent, the appellate court had jurisdiction under Section 153 of the Code of Civil Procedure to permit the cause title to be amended or in the alternative to return the appeal memorandum for being amended and re-presented. It was also held in that case by the Full Bench that the appellate court while dealing with the amendment was acting in a proceeding in a suit and as such had full power under Section 153 to direct an amendment of the appeal memorandum.
In our opinion the principle of the decision of the Full Bench applies to the present case and it must be held that the Small Cause Court had jurisdiction to allow an amendment of the plaint because the amendment petition was filed within the period of limitation, and, as a matter of law, It must be taken that the amendment petition was a fresh plaint against the new defendant, namely, against Sri Girishwar Prasad Singh. It is also found in the present case that notice of the suit had been served upon the substituted defendant and the decree granted by the Small Cause Court must, therefore, ‘be held to be a valid decree and not affected by any error of jurisdiction.
The view we have expressed is borne out by the decision of Govinda Menon, J., in Kaunagara Ismail v. P. K. Pavu Amma, (S).’ AIR 1955 Mad 644. In that case also a suit was filed against certain defendants who were dead at the time of filing it, and the court in ignorance of that fact and on the assumption that they were alive on the date of the suit allowed the legal representatives to be brought on the record on the application of the plaintiff. The suit was not time barred as against the legal representatives on the date of the application for impleading them as legal representatives, and a decree was later on passed against the new defendants.
Upon these facts it was held by Govinda Menon, J. that the plaint could be considered as freshly instituted against the new defendants on the date when the application for impleading them was filed, and hence the decree could not be said to be void ab initio. The same view has been expressed by the High Court of Andhra Pradesh in C. Raju v. Dinshahji Dadabhai Italia, AIR 1961 Andh Pra 239.
We also think that the same principle is implicit in the decision of Sir Barnes Peacock, C. J. and Dwarkanath Mitter, J. in Mohun Chunder Koondoo v. Azeem Gazee Chowkeedar, 12 Suth W. R. 45, upon which the decision of the Madras High Court in I. L. R. 31 Mad 86 is based. In the Calcutta case a plaint was filed on the 18th February, 1866, and the trial was fixed on the 24th February, 1866
On that date it appeared from the evidence of the peon who went to serve the summons that the defendant had died about a year before the filing of the plaint, and thereupon, the plaintiff’s pleader, applied to the Court to substitute the legal representatives of the deceased defendant on the record of the case. The Small Cause Court refused to grant the application as it appeared to it that the suit would be barred against the substituted defendants under the law of limitation. When the reference came before the High Court Sir Barnes Peacock, C. J, delivered the following opinion:
“We are of opinion that the defendant in the original suit having the died before the filing of the plaint against him, the Court had no jurisdiction to decide upon the case. Under these circumstances, the time during which the suit was being prosecuted bona fide and with due diligence against the dead man may be deducted in calculating the period of limitation against his representatives. It will be for the Judge to determine whether the plaintiff was suing the deceased bona fide and with due diligence, or whether he was wanting in due care and caution in not ascertaining whether the party against whom he was proceeding was dead”.
4. From this judgment also it appears that the learned Judges were of the view that the plaintiff may be allowed to prosecute the suit as against the legal representatives of the ‘deceased’ defendant whose substitution was prayed for within the period of limitation, and in computing the period ‘of limitation the plaintiff may be allowed the deduction of the time during which the suit was being prosecuited bona fide and with due diligence. For these reasons we hold that the lower appellate court was erroneous in holding that the decree of the Small Cause Court was a nullity. If the decree of the Small Cause Court was not a nullity, then it follows that the case is governed by Article 166 of the Limitation Act and the application of the judgment debtor for setting aside the sale must be dismissed on the ground of limitation,
5. The other question raised in this case is whether the non-service of notice issued under Order 21. Rule 22, Code of Civil Procedure has the effect of making the sale in execution a nullity. The lower appellate court has relied upon a decision of this High Court in Ramdhari Singhi v. Saligram Singh, AIR 1954 Pat 429, but it is the admitted position that the present case is governed by the provisions of Order 21, Rule 22, Code of! Civil Procedure, after its amendment.
It is well settled by the authorities of this High Court that in view of the amended rule the issue of notice by the executing court under Order 21, Rule 22, Code of Civil Procedure, is not a matter of jurisdiction.; see, for instance, the decision of this High Court in Sukhdeo Gond v. Brahamdeo Tewari, AIR 1957 Pat 431. We accordingly hold that the sale in the execution case was not a nullity in the absence of notice under order 21, rule 22, Code of Civil Procedure, and the case will still be governed by Article 166 of the Limitation Act and not by Article 181 of that Act.
6. Lastly; learned Counsel for the appellant submitted that the case should be remanded to the lower appellate court for a finding whether the applicant was kept out of knowledge of the sale on account of the fraud practised by the decree-holder. We do not think there is any ground for remand in this case because there is a finding of the lower appellate court that no fraud was practised by the decree-holder and the question of the application of Section 18 of the Limitation Act does not arise in this case.
7. For these reasons we hold that this appeal should be allowed, the order of the lower appellate court should be set aside and the application of the judgment-debtor respondent for setting aside the sale should be dismissed.
8. We accordingly allow this appeal, but the parties will bear their costs throughout.
