JUDGMENT
Bachawat, J.
1 .One Bholanath Dutta and his wife, Chintamani Dassi, jointly executed a mortgage of the disputed plot of land, known as Nimasol Nishkar, as also of other plots of land in favour of one Chand Keyot. On the death of Chand Keyot, his three sons, Gangadhar, Jamuna and Padma instituted a suit against both Bholanath and Chintamani and obtained a final decree for sale of all the mortgaged properties. On July 19, 1933, the decree-holders put the final decree into execution and commenced Title Execution Case No. 1526 of 1933 against both Bholanath and Chintamani. The sale proclamation was issued on October 25, 1933 and published on November 13, 1933. Chintamani died on November 27, 1933. All the mortgaged properties were sold at the Court sale on December 22, 1933 and purchased by the three decree-holders. The sale was confirmed on May 1, 1937. Chintamani was the sole owner of the disputed plot of land. She left behind her three sons as heirs and legal representatives. In spite of her death, her representatives were not brought on the record of the execution case. The decree-holders did not apply under Section 50, C. P. C., to execute the decree against her representatives. No notice was issued to her legal representatives under Order 21, Rule 22(1)(b), C. P. C., nor was any order made by the Court for executing the decree against them. The Court which passed the decree was also the executing Court. Bholanath was alive during the pendency of the execution proceedings. He was not the owner of the disputed plot of land nor was he a legal representative of Chintamani. Bholanath was the owner of the other mortgaged properties. The sons of Chintamani sold and conveyed the disputed plot of land to the defendant No. 1 by a registered kobala dated July 28, 1939. In spite of the Court sale, the sons of Chintamani and subsequently the defendant No. 1 continued to be in possession of the disputed plot of land. The plaintiff purchased the alleged two-thirds share of the auction purchasers, Jamuna and Padma, in the disputed plot of Land by a kobala dated November 10, 1937 and the remaining one-third share of Gangadhar therein in a court sale on June 11, 1938. The Courts below have found that the plaintiff is a mala fide purchaser. The plaintiff instituted the present suit in 1944 for a declaration of her title to the ownership of the disputed plot of land and for recovery of khas possession thereof. The defendant No. 1 and her lessee, the defendant No. 7 contested the suit. Their principal defence is that since Chintamani died before the court sale in Title Execution Case No. 1526 of 1833, the title of the heirs of Chintamani to the disputed plot of land did not pass at the court sale and consequently the auction purchasers and the plaintiff claiming through them did not acquire any title to the ownership of the disputed property. Both the Courts below accepted this defence contention and dismissed the suit. The plaintiff has preferred this second appeal to this Court. The principal question in the appeal is whether a court sale of a mortgaged property in execution of a final decree for sale thereof held after the death of the judgment-debtor without impleading her heirs is binding upon the heirs where the sale proclamation was issued and published before the death of the judgment-debtor. The Division Bench thought that there is a conflict of judicial opinion on the point and accordingly referred the following questions to the Full Bench for decision:
1. “What is the effect of the death of a judgment-debtor after the issue of a sale proclamation on the validity of the sale held thereafter without impleading the heirs of the deceased judgment-debtors? ”
2. “Which of the two cases — Tarangini Devi v. Raj Krishna Mandal, 32 Cal WN 418 or Faizaddi Taluqdar v. Rezia Begum –is correctly decided?”
2. As the questions arose in an appeal from an appellate decree the whole case has been referred to the Full Bench under Ch. VII, Rule 2 of the Appellate Side Rules.
3. On behalf of the plaintiff-appellant Mr. Sen contended firstly, that a sale in execution of a decree held in West Bengal after the death of the judgment-debtor without impleading his legal representative as a party to the execution proceedings binds the representative in view of the amendment of Rule 22 of Order 21, C. P. C. by the Calcutta High Court. Secondly, he contended relying upon the decision in Sheo Prosad v. Hiralat, ILR 12 All 440, and the cases which followed it, that such a sale is valid where the property was attached and ordered to be sold in execution of a money decree during the life time of the judgment-debtor and also where the property being mortgaged a final decree for its sale was passed during his life time. Thirdly, he contended that in any event such a sale is valid where the sale proclamation was issued and published before the death of the judgment-debtor. In my opinion each of these contentions should be rejected.
4. We are concerned with a case where a decree is passed against a living person. Obviously the decree may be executed against him during his life time. The difficulty arises when the judgment-debtor dies before the decree is fully satisfied. How and against whom and under what conditions is further execution of the decree to proceed?
5. On the death of the judgment-debtor the decree can no longer be executed against the dead man.
6. He who was a person when he lived is no longer a person when he dies. The dead man owns no property. A temporal Judge has no power over him. He leaves all his estate behind him. The moment he dies, what was formerly his estate vests in his legal representative.
7. The decree-holder who seeks to execute the decree after the death of the judgment-debtor must execute it against some existing person. Order 21, Rule 11 (2) (i), requires him to name the person against whom execution of the decree is sought The decree cannot be executed against the estate of the deceased person independently of the legal representative who represents the estate and in whom the estate vests.
8. In Lakraj Roy v. Becharam Misser, 7 Suth WR 52, Macpherson, J. observed:
“We know of no precedent for the issue of execution against the estate of a dead man, when there is no one on record who represents him.”
9. Section 50 enables the decree-holder to enforce the decree against the legal representative of the deceased to the extent of the property of the deceased which has come to his hands. In form Section 50 is permissive. The word “may” in the section implies an option to apply or not to apply. If the decree-holder does not want satisfaction of the decree out of the property of the deceased in the hands of the legal representative, he need not apply under Section 50. But if he wants such satisfaction, he must apply under Section 50 to execute the decree against the legal representative and obtain an order permitting the execution to proceed against the representative,
10. Section 50 applies to all decrees capable of execution and to all property of the deceased which has come to the hands of the representative. The section applies where the decree-holder files an original application for execution after the death of the judgment-debtor and also where he seeks to continue the proceeding in execution which was pending when the judgment-debtor, died. In each case the decree-holder who desires satisfaction of his decree out of the property of the deceased must enforce the decree against the legal representative of the deceased. The mode of enforcement of the decree against the representative is provided for by Section 50 and Order 21, Rules 22 and 23. In order to enable execution to proceed against the representative the decree-holder must apply under Section 50 to execute the decree against the representative, a notice must issue to the representative under Sub-rule (1) of Rule 22 of Order 21 to show cause why the decree should not be executed against him and an order allowing the execution to proceed against him must be obtained.
11. An original application for execution of the decree against the estate of the deceased presented after his death without anyone on the record to represent it is ineffectual, see Madho Prasad v. Kesho Prasad, ILR 19 All 337, Pashupatinath Malia v. Ushapati Misra AIR 1949 Cal 299. Similarly, if the judgment-debtor dies during the pendency of an execution case, further proceedings in execution against the estate of the deceased cannot effectually be taken without bringing on the record someone who represents the estate, see Sm. Rajlakshmi Bassi v. Bonomali Sen, .
12. Proceedings In execution pending at the time of the death of the judgment-debtor do no abate on his death, see Jang Bahadur v. Bank a Upper India Ltd., 55 Ind App 227 at 233 : (AIR 1928 PC 162 at p. 164). Instead of presenting a fresh, application for execution against his legal representative the decree-holder may continue the proceedings against the representative by substituting him in place of the deceased after following the procedure prescribed by Sec, 50 and Order 21, Rule 22 and 23, C. P. C., see , Kanchamali Pathar v. Sahaji Rajah Sahib, ILR 59 Mad 461 at pp. 486 501-503 : (AIR 1936 Mad 205 at pp. 211-212, 21ft 217), Ajablal v. Hari Charan, ILR 23 Pat 528 at p. 549 : (AIR 1945 Pat 1 at p. 8). Whatever the stage of the execution proceedings may be, the presence of the representative on the record is necessary before further, proceedings in execution can be had.
13. The property of the judgment-debtor re mains his property and the decree-holder acquires no title to it in spite of the passing of a money decree, see Mirza Mohamed Aga Ali v. Widow of Balmakund, 3 Ind App 241 at p. 248 (PC), or the making of an attachment, ILR 59 Mad 461 at 484-5 : (AIR 1936 Mad 205 at p. 211), explaining Suraj Bunsi Koer v. Sheo Prasad Singh, 6 Ind App 88 (PC), and Anantapadmanabhaswami v. Official Receiver, Secunderabad , or the passing of an order for sale under it, see Raghunath Das v. Sundar Das Khetri, 41 Ind App 251 at 254: (AIR 1914 PC 129 at p. 130). Similarly, the judgment-debtor remains the owner of the mortgaged property in spite of a final decree for sale in a suit to enforce the mortgage. On the death of the judgment-debtor, the property devolves on the legal representative, subject to the attachment and the order for sale and/or subject to the decree for sale, and the property having “come to his hands”, Section 50 applies.
14. The provision in Section 50 as to the court to which the application under it is to be made is a matter of procedure and not of jurisdiction. The regular mode of procedure is to apply to and obtain an order from the court which passed the decree that the execution should proceed against the representative of the deceased judgment debtor. But if the order is made in execution proceedings by the transferee court without any objection and is acquiesced in by the representative, the order, though irregularly made binds him, see 55 Ind App 227: (AIR 1928 PC 162). He is a party to the proceedings. The court has power to make the irregular order against him. But the court has no power to act over a dead person or a person who is not a party to the proceedings.
15. In 41 Ind App 251: (AIR 1914 PC 129), the decree-holders attached certain properties belonging to the judgment debtors in execution of a money decree and obtained an order for sale of those properties. Subsequently, the judgment debtors were adjudicated insolvents and their properties were vested in the official assignee. Thereupon the executing court ordered the official assignee’s name to be substituted for the judgment debtors after issuing a notice to the official assignee to show cause why his name should not be substituted in place of the judgment debtors. Without issuing any further notice to the official assignee under Section 248 of the Code of 1882 requiring him to show cause why the decree should not be executed against him, the executing court ordered the issue of a sale proclamation. The properties were thereafter sold in execution of the money decree and were purchased by the respondents. The sale certificate showed that the respondents had purchased the right, title and interest of the judgment debtors. The official assignee thereafter sold and conveyed the properties to the appellants. The appellants then instituted a suit to establish their title to the properties. The Privy Council held that the appellants were entitled to the decree asked for and that the sale was altogether irregular and Inoperative and did not pass the right, title and interest in the properties vested in the official assignee in spite of the fact that the official assignee was made a party to the proceedings. The Code of 1882 did not contain a definition of “legal representative.” The case was decided on the footing that the official assignee was the representative of the insolvent judgment debtors. The Privy Council held that 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 and that this could only be done by obtaining an order for the issue of and by serving him with a notice under Section 248 of the Code of 1882 which was then in force.
16. This decision established that the issue of the notice under Section 248 of the Code of 1882 was the foundation of the jurisdiction of the court to execute the decree against the legal representative. The decision has been followed under the Code of 1908 and the issue of the notice under Sub-rule (1)(b) of Rule 22 of Order 21 o£ the Code of 1908 has been regarded as the foundation of the jurisdiction of the court to proceed against the representative and to sell the property vested in him. But in the Code of 1882 there was no provision corresponding to Sub-rule (2) of Rule 22 of Order 21 of the Code of 1908, and since the issue of the notice can now be dispensed with for reasons recorded in writing under that sub-rule it was arguable that the omission to issue the notice was a mere irregularity, see Manindra Chandra v. Rahataunnessa Bibi . In ILR 23 Pat. 528 at p.581: (AIR 1945 Pat 1 at p. 14). Chatterji, J. ruled that a court sale held without the issue of the notice under Order 21, Rule 22 to the legal representative does not bind him, but the sale is not a complete nullity and the purchaser acquires a title good and effective against a trespasser.
17. Rules 22 and 90 of Order 21 have been amended by the Calcutta High Court with effect from February 3, 1933. Sub-rule (3) of the amended Rule 22 provides that an omission to issue the notice required under Sub-rule (1) or to record reasons in a case where the notice is dispensed with under Sub-rule (2) shall not affect the jurisdiction of the court in executing the decree. By the amended Rule 90 the failure to issue the notice under Rule 22 is a ground for setting aside a sale of immovable property in execution of a decree.
18. In view of these amendments since February 3, 1933, so far as the Calcutta High Court is concerned an omission to issue the notice required by Order 21, Rule 22 is a mere irregularity not affecting the jurisdiction of the court in executing the decree. But these amendments do not abrogate Section 50. The decree-holder must still apply under Section 50 to execute the decree against the legal representative and obtain an order binding on him and allowing the execution to proceed against him, see AIR 1949 Cal 299. Section 50 embodies the fundamental principle that the legal representative must be made a party to the execution proceedings in order that the court acquires power to proceed against him and to sell his property. The court has no power to act over a person who is not a party to the litigation before it. In Re., Shepherd; Atkins v. Shepherd, (1889) 43 Ch D 131 at p. 137, Cotton L, J. observed:
“It is quite new to me to hear it alleged that there is anything in the rules to enable the court to make an order against a person who is not a party to the action.”
Equally the court has no power to sell in proceedings in execution, the property of a person who is not a party to those proceedings. This principle remains in force in spite of the Calcutta amendments.
19. A court sale of the property of the judgment-debtor after his death without impleading his legal representative docs not bind the representative, at whatever stage of the execution proceedings the judgment-debtor might have died and irrespective of whether the sale was in execution of a money decree or a rent decree or a final decree for sale in a mortgage suit. Such a sale docs not bind his representative where the death takes place after the commencement of the proceedings for execution of a money decree see Nani Bai v. Gita Bai , or after an attachment is made, Ramasami v. Bagirathi, ILR 6 Mad 180, Krishnayya v. Unnissa Begum, ILR 15 Mad 399, or after an order for sale is passed, see Chandi Prasad v. Mt. Jumna , Rajayya v. Annapurnama, 50 Mad LJ 662: AIR 1926 Mad 138 or after the sale proclamation is issued and published, see Groves v. Administrator General of Madras, ILR 22 Mad 119, ILR 59 Mad 461 : (AIR 1936 Mad 205) (FB). Likewise the sale does not bind the representative where the death takes place after the commencement of the proceedings for execution of a rent decree under the Bengal Tenancy Act see ; AIR 1949 Cal 299. Equally the sale does not bind the representative where the death takes place after the passing of a final decree in a suit to enforce a mortgage, see ; Rayarappan Nambiar v. Malikandi Aketh Mayan, AIR 1914 Mad 297 (2) : 26 Mad LJ 267 or after the commencement of the proceedings for its execution; Raghunatha Swami v. Gopauji Rao, AIR 1922 Mad 307 or after the issue and publication of the sale proclamation under it, sec ILR 23 Pat 528 : (AIR 1945 Pat 1) (FB). The sale in execution of the final decree for sale of the mortgaged property did not bind the legal representative of the deceased puisne mortgagee defendant in 41 Mad LJ 547 ; AIR 1922 Mad 307 or the sole heir of the deceased mortgagor judgment-debtor in ILR 23 Pat 528 : (AIR 1945 Pat 1) (FB); AIR 1914 Mad 297 (2), as also one of his several heirs . In some of the cases the decision that the sale did not bind the representative was rested on two grounds, firstly on the ground that Section 50 had not been complied with, and the representative had not been made a party to the execution proceedings; secondly, on the ground that there was an omission to issue the notice under Order 21, Rule 22(1)(b), and that having regard to the decision in 41 Ind App 251 : (AIR 1914 PC 129), such an omission affected the jurisdiction of the court. Since the amendment of Rule 22 and 90 of Order 21 by this Court these decisions are no longer authorities in this Court so far as they proceeded on the second ground; but they still apply with full force so far as they proceeded on the first ground.
20. The cases of and Pashupatinath Malia, AIR 1949 Cal 299, were correctly decided. But it should be noted that the referring Judges were wrong in assuming that in those cases the judgment-debtor died after the issue of the sale proclamation. In the first case the death took place before the publication of the sale proclamation. In the second case the report shows only that the death of the judgment-debtor No. 1 took place after the commencement of the Rent Execution case.
21. But it makes no difference to the validity of the sale that the judgment-debtor died after the issue and publication of the sale proclamation. The crucial date is the date of the sale. The sale is a process in execution of the decree and if the decree-holder wishes to execute that process, Section 50 applies and the decree-holder must lawfully execute the decree against the representative.
22. The presence on the record of the execution case of some person who in law represents the estate of the deceased is necessary for the protection of the estate before, after and at the time of the sale.
23. Rules 69 and 83 of Order 21 give the judgment-debtor the opportunity to apply for adjournment of the sale. The third and fourth conditions of sale in the standard form of the proclamation of sale given in Form No. 29 of Appendix E to Schedule I of the Code empower the officer conducting the sale to refuse to accept the highest bid when it appears to be clearly inadequate and also to adjourn the sale. A party to the proceeding can move the officer and ask him not to accept the inadequate bid and also to adjourn the sale. Rules 72 (3), 89 and 90 of Order 21 enable a person whoso interest is affected by the sale, to apply to the court to set it aside before it is confirmed. Rule 5 of Order 34 enables redemption of the mortgaged property at any time before the confirmation of the sale. AH these valuable rights and opportunities are denied or axe put in jeopardy if the legal representative is not made a party to the proceedings.
24. The proclamation of sale gives the name of the person whose interest in the property is offered for sale. If the sale is carried out against a dead man, the sale is a nullity. What is sold is the dead man’s interest, but the dead man has no interest in the property and the purchaser acquires no title to it. If the sale is carried out after impleading a wrong person who in law does not represent the estate of the deceased, the sale passes the supposed title of the person so impleaded, if the sale has any effect at all, but the purchaser acquires no title to the property, for that person had no title to it, see , Shankar Daji v. Dattatraya Vinayak, ILR 45 Bom 1186 : AIR 1921 Bom 385. In either case the interest of the legal representative of the deceased is not even offered for sale. However, bona fide the purchaser may be acting, he does not acquire a title which he has not bought. Moreover, the representative is not bound by the sale, for he is not a party to the proceedings. He may treat the sale as a nullity and need not sue to set it aside within the period prescribed by Article 12 of the Indian Limitation Act.
25. The sale does not relate back to the date of the commencement of the proceedings in execution. The theory of the English and American Law that a writ of fieri facias took effect from the date of the teste and that a valid sale might sometimes be made under a writ tested before the death of the judgment-debtor but actually issued afterwards has no application in this country, see ILR 59 Mad 461 at pp. 479-81 : (AIR 1936 Mad 205 at pp. 209 to 210) (FB). The provisions of Order 22, Rule 6, C, P. C. as to judgments cannot be extended by analogy to a court sale and a court sale held after the death of the judgment-debtor cannot be deemed by a fiction of law to have taken place before his death.
26. In , one Gundi executed mortgages of several immovable properties in favour of the defendant No. 1. Subsequently, another creditor of Gundi obtained a money decree against him and commenced execution proceedings against him during his life time. During the pendency of the execution proceedings Gundi died leaving him surviving two daughters named Bai Gita, the plaintiff and one Tanu as his heirs and legal representatives. On the death of Gundi his legal representatives were not impleaded as parties in the execution proceedings. Gundi’s brother, Sadashiv was substituted in the place of Gundi in the execution proceedings but Sadashiv was not the legal representative of Gundi. Thereafter all the mortgaged properties were sold in execution of the money decree and were purchased by the defendant No. 1 in the name of his son, Subsequently, the plaintiff, Bai Gita instituted two suits for accounts and for redemption of the mortgaged properties against the mortgagee defendant No. 1 and several subsequent transferees from him. The defendant No. 1 contested the suit inter alia on the ground that the auction sale was validly held and that he acquired a good title to the properties purchased at the sale and that in any event the plaintiffs were barred by Article 12 of the Indian Limitation Act. The facts of the case are more fully set out in the judgment of the Bombay High Court in Motilal Fulchand v. Gita Bai, , from which the appeal was taken to the Supreme Court . The question was whether the plaintiff Gita Bai was bound by the Court sale and whether the suit was barred by Article 12 of the Indian Limitation Act. Sinha, J., observed at pp. 179 and 180 of the Report :
“If Sadashiv could not be the representative-in-interest of Gundi, as will presently appear, he could not have represented Gundi’s estate and, therefore, the sale as against him, would be of no effect as against the plaintiff, ……………In execution proceedings, the property was sold as that of Sadashiv — the substituted judgment-debtor. It was a money sale and passed only the right, title and interest of Sadashiv, if it had any effect at all. Malkarjun v. Narhari, 27 Ind App 216 (PC), therefore, is of no assistance to the appellants. The plaintiff, Gundi’s daughter, not being affected in any way by the sale aforesaid, it is not necessary for her to sue for setting aside the sale. She was entitled, as he has done, to ignore those execution proceedings, and to proceed on the assumption, justified in law, that the sale had not affected her inheritance. The suit is, therefore, not barred by Article 12 of the Limitation Act.”
27. Mr. Sen relied upon the decision in 27 Ind App 216 (PC). In that case one Nagappa mortgaged certain lands to the defendant. Subsequently, one Vithal, a creditor of Nagappa obtained a money decree against Nagappa and his surety. Thereafter Nagappa died. The decree-holder Vithal then presented an application for execution against the estate of the deceased Nagappa represented by Ramlingappa. Ramlingappa was the nephew of Nagappa but was not his heir. His daughters, the plaintiffs were his heirs but they were not made parties to the execution proceedings. In spite of the objection of Ramlingappa the executing Court held that he was the legal representative of the deceased Nagappa. The mortgaged property was thereafter sold in execution of the money decree on June 9, 1880 and was purchased by the defendant, who obtained possession of the property. On February 1, 1889, the plaintiff instituted the suit against the defendant for redemption of the property. The defence was that the defendant had purchased the property at the court sale. The Privy Council held that the sale passed the title of the plaintiff in the mortgaged property, that the sale could not be treated as a nullity, and that if the suit was treated as a suit to set aside the sale it would be barred by Article 12(a) of the Limitation Act, 1877. It will be noticed that the plaintiff who was the real legal representative of the deceased judgment-debtor was not impleaded in the execution proceeding and that the sale was held without her being brought on the record, yet the Privy Council held that the estate of the deceased was represented in the proceeding and that the title in the property passed. This decision must be understood in the context of its special facts. The decision can be applied only where there has been an express adjudication that the wrong person brought on the record was the true legal representative of the deceased judgment-debtor. The principle of that case is not to be extended, see 41 Ind App 251 at p. 257: . In the last case Sinha, J., doubted the correctness of the decision in Malkarjun’s case, 27 Ind App 216 (PC) and observed that it may be well argued that the decision is not correct and that it is subject to the infirmities of an ex parte judgment.
28. In this case we are not concerned with the question whether and in what circumstances the estate of the deceased judgment-debtor can be said to be so substantially represented on the record of the execution case that the legal representative is constructively a party to the case and is bound by the proceedings therein. This question may arise where the decree-holder acting bona fide has impleaded as the legal representative (a) the person in possession of his estate or (b) the heir on intestacy who is held out to be the legal representative though the deceased died testate or (c) only one heir out of several heirs of the deceased. In this case no such question arises. Chintamani was not represented at all on the record of the execution proceedings.
29. We are also not concerned in this case with the question whether the purchaser is entitled to any equitable relief in a case where the sale turns out to be void and inoperative. The point is discussed in Freeman ‘On Void Judicial Sales’, 4th Edn., Article 49 and in ILR 23 Pat 528 at p. 565: (AIR 1945 Pat 1 at p. 16). No such equitable relief is claimed by the plaintiff in this case nor is a case for such relief made out.
30. We are also not concerned In this case with the question whether a judicial sale void as against the representative may be ratified by him either directly or by a course of conduct which estops him from denying its validity and whether he may elect to treat it as valid by receiving the surplus proceeds of the sale with full knowledge of his right or by other acts and conducts. The point is discussed in Freeman “On Void Judicial Sales’ 4th Edn., Articles 1,50 and 50(a). In Sukhlal Sheikh v. Tarachand Ta, ILR 33 Cal 68 at p. 71, Mookerjee, J., observed that a defect as to jurisdiction in relation to persons may be waived. No case of ratification or estoppel is made out by the plaintiff in this case.
31. I will now consider the cases which appear to favour Mr. Sen’s contention.
32. In ILR 12 All 440 (FB), it was held under the Code of 1882 that a court sale held after the death of the judgment-debtor, of property attached during his life time in execution of a money decree was regular and valid and bound his legal representative though the representative was not impleaded as a party to the execution proceedings. The Allahabad High Court held that the attached property is in the custody of the law and that Section 234 of the Code of 1882 did not apply to cases where the judgment-debtor died after attachment but before sale. This case did not correctly interpret Section 234 of the Code of 1882. The attachment does not arrest the devolution of the attached property on the legal representative. The decree is not fully executed by attachment.
The custody of the law does not vest the title to the property in the court. The Allahabad High Court also held that there was no provision in the Code of 1882 requiring notice to be given to the legal representative of a sale of property under attachment. This interpretation of the Code of 1882 is not consistent with the decision in 41 Ind App 251: (AIR 1914 PC 129). The case was wrongly decided, see the observations of Boddam, J., in ILR 22 Mad 119 at p, 125 and of Varadachariar, J., in ILR 59 Mad 461 at p. 488: (AIR 1936 Mad 205 at p. 212). The case 3s not an authority under the Code of 1908. In view of the substitution of the word ‘satisfied’ in Section 50 for the word ‘executed’ in Section 234 of the Code of 1882, Section 50 will apply to the case of death ponding attachment even on the assumption that the decree is fully executed by attachment, see 32 Cal WN 418 at p. 419. Besides Rule 66 of Order 21, of the Code of 1908 requires the drawing up of the sale proclamation on notice to the judgment-debtor. There was no such provision in the Code of 1882. Sheo Prasad’s case, ILR 12 All 440, was not followed even in the Allahabad High Court under the Code of 1908 in a case where the judgment-debtor died before the publication of the sale proclamation, see .
33. Sheo Prasad’s case, ILR 12 All 440, was followed under the Code of 1882 in Net Lall Sahoo v. Sheikh Kareem Bux, ILR 23 Cal 686 and Jagadish Bhattacharjee v. Bama Sundari Dasya, 23 Cal WN 608: (AIR 1919 Cal 411). In the first case the mortgage decree was made absolute and an order for sale was made during the life time of the judgment-debtor and the property was sold after her death. It was held that the omission to bring her representative on the record was not even an irregularity and the sale was not set aside. In the second case a property attached during the life time of the judgment-debtor in execution of a money decree was sold after his death. It was held that the omission to bring his legal representatives on the record was at most an irregularity and did not render the sale void and that it was too late for the representatives under the law of Limitation to bring forward the objection in a suit instituted by them for the recovery of the judgment-debtors’ share in the property. These decisions are open to the comments already made in connection with Sheo Prasad’s case, ILR 12 All 440.
34. In 32 Cal WN 418, a sale proclamation and a notice of attachment were served on the judgment-debtor during the life time of the judgment-debtor and the sale of the property took place after his death. It was held that the omission to bring his heirs on the record was an irregularity and no more and though the sale was liable to be set aside in appropriate proceedings under Order 21, Rule 90, it was not a nullity and unless it was so set aside it bound the heirs and could not be ignored by them in a suit instituted by them for recovery of the property. Rankin, C. J., followed the decisions in Doraiswami v. Chidambaram Pillai, ILR 47 Mad 63: (AIR 1924 Mad 130), Haraprasad v. Gopal Chandra and 23 Cal WN 608: (AIR 1919 Cal 411). The first case has been overruled by a Full Bench of the Madras High Court in ILR 59 Mad 461 : (AIR 1936 Mad 205). The second case is a decision under Bengal Public Demands Recovery Act I of 1895 and will be noticed hereafter. The third case was based upon the old Allahabad view and has already been commented upon. Curiously enough, Rankin, C. J., himself thought that the old Allahabad view cannot be regarded as good law under the Code of 1908. Rankin, C. J., also omitted to notice the decision in 41 Ind App 251: (AIR 1914 PC 129). In my opinion Tarangini Debi’s case, 32 Cal WN 418 was not correctly decided.
35. In the case of Mahadeolal Agarwala v. New Darjeeling Union Tea Co., Ltd., , a Division Bench of this Court ruled that if the judgment-debtor had died after the commencement of the proceedings for execution of a money decree and the sale in execution took place after his death, the sale is valid in respect of his share in the property though his representatives were not brought on the record. The death there took place in June 1932 before the amendment of Rule 22, Order 21, C. P. C., by the Calcutta High Court. This case is inconsistent with the decision in . The Bench omitted to consider the previsions of Section 50, C. P. C. The ground of the decision is that no notice under Order 21, Rule 22, is necessary if the judgment-debtor dies after the filing of the execution case. The decision in 41 Ind App 251: (AIR 1914 PC 129), shows that the notice under Order 21, Rule 22(1)(b) is required to be issued where proceedings in execution started against the judgment-debtor is sought to be continued against his legal representative, see Smith v. Kailashchandra Chakravarty, ILR 11 Pat 241: (AIR 1932 Pat 199), ILR 23 Pat 528 at p. 549: (AIR 1945 Pat 1 at p. 8) (FB).
36. In some decisions the Courts had to consider cases of sales under the public Demands Recovery Act where the certificate debtors died after the service of the usual notices upon them. In Bipin Behary Bera v. Sasi Bhusan Dutta, 18 Cal WN 766: (AIR 1914 Cal 554), (a case decided under Bengal Act I of 1895) and in (a case decided under the Bengal Act III of 1913), the Court held the sales to be valid following the decision in ILR 12 All 440, 27 Ind App 216 (PC), other cognate decisions. In Hari Prasad Singh v. Lal Behari Saran, ILR 19 Pat 618: (AIR 1940 Pat 328) (FB), (a case decided under the Bihar and Orissa Act IV of 1914), Dhavle, J., thought that the sale was valid. Manoharlall, J., and Harries, C. J., thought that the question did not arise for decision. Harries, C. J., doubted whether the sale was valid. In this case it is not necessary to express any opinion on the effect of a sale after the death of a certificate debtor under the Public Demands Recovery Acts. The provisions of those Acts require special consideration, see ILR 23 Pat 528 at p. 555: (AIR 1945 Pat 1 at p. 11).
37. In my opinion question (1) should be answered by saying that the sale is not valid or operative against the heirs of the deceased judgment-debtor and does not affect them in any way.
38. Question (2) should be answered by saying that the case of 32 Cal WN 418 was incorrectly decided; that the case of , was correctly decided.
39. It follows that the heirs of Chintamani are not bound by the court sale in title execution case No. 1526 of 1933. The auction purchasers and consequently the plaintiff who claims through them did not acquire the title of the heirs of Chintamani to the ownership of the property in suit. Consequently, the plaintiff is not entitled to institute the suit for ejectment of the defendants.
40. Besides the principal defence raised by them, the defendants Nos. 1 and 7 raised certain special pleas. The defendant No. 1 claimed protection under Section 53-A of the Transfer of Property Act with regard to two-thirds share in the disputed property on the strength of an unregistered agreement in writing by the auction purchasers, Jamuna and Padma to surrender their right title and interest in the disputed property for valuable consideration. The defendant No. 7 claimed to have acquired occupancy right on the basis of the decision in Binad Lal Pakrashi v. Kalu Pramanik, ILR 20 Cal 708 (FB). It is not necessary to pronounce on these special pleas.
41. At one stage of his argument Mr. Sen contended that the defendants could raise the plea of the invalidity of the sale only in an application under Section 47, C. P. C., and not by way of defence in the suit. This contention was raised for the first time before the Full Bench. On the other hand, Mr. Mitra relying upon the case of Rashid-un-nisa v. Muhammad Ismail Khan, ILR 81 All 572: 36 Ind App 168 (PC), contended that Section 47 can have no application where the legal representative was not made a party to the execution proceedings. It was also pointed out that where the sale in execution is inoperative and void, an application under Section 47, C. P. C., to have St declared void and for appropriate reliefs is governed by Article 181 and not Article 166 of the Indian Limitation Act and that the starting point of limitation is the date of dispossession and that the limitation did not commence to run in this case since the defendants are in possession of this property, see Bamanna v. Nallaparaju, . Thereupon Mr. Sen abandoned this new contention. It is, therefore not necessary to pursue this matter any further.
42. The appeal must, therefore, fail.
43. I propose that the appeal be and is hereby dismissed with costs. Hearing fee is assessed at 5 g.ms.
Lahiri, C.J.
44. I agree with the judgment delivered by Mr. Justice Bachawat.
P.N. Mookerjee, J.
45. I agree that this Reference should be answered as proposed by my Lord (Bachawat, J.). I have had the advantage of reading the judgment which he has just delivered. He has dealt with the case in all its relevant aspects from every conceivable point of view and he has noted and discussed all the authorities, which may have even a remote bearing on the point or points at issue. I do not, therefore, deem it necessary to discuss the matter at any great length but I would merely indicate, in brief, my approach to the problem before us and my specific reasons for agreeing with my Lord’s conclusions.
46. The point involved raises a short but difficult question, on which judicial opinion is sharply divided, and a complex problem presents itself for consideration in this Reference. The point is oft-recurring and of far-reaching importance and consequence and it poses a basic question which has baffled judicial ingenuity to come to an agreed solution. That crucial question has been put by the learned referring Judges as question No. 1 in the following terms:
“1. What is the effect of the death of a judgment-debtor after the issue of a sale proclamation on the validity of the sale held thereafter without impleading the heirs of the deceased judgment-debtor?”
and, as a corollary to the above, a second question has been framed on the two leading decisions on either side, seeking clarification as to their correctness or otherwise and that question has been put in the referring order, as follows:
“2. Which of the two cases –32 Cal WN 418 or –is correctly decided?”
47. The decision of the reference depends on certain fundamental principles and some of the provisions of the Code of Civil Procedure, to which adequate attention has been drawn by my Lord (Bachawat, J.), in his judgment, just delivered, and to which I shall make a brief reference at appropriate places. I would not embark on a long discussion, as I do not feel the necessity for it, particularly in view of the very elaborate and exhaustive judgment of my Lord. I would, however, endeavour to put the answers in my own way on certain short grounds, which, to my mind, conclude the particular question or questions before us.
48. At the outset, I would refer broadly to certain general principles of fundamental character, which, even if they are not sufficient to clinch the issue or issues before us, will, at least, help in narrowing down the same and thus restrict the scope of useful and necessary discussion. These principles are:
(a) generally speaking, no man can be affected and no man’s estate or property also can be touched by any order, passed in a proceeding, to which he is not a party, or, in which the said estate or property is not represented. This has been stated by the Privy Council (per Lord Davcy) to be an elementary proposition in Khiarajmal v. Daim, 32 Ind App 23 at p. 33, citing, Sir Barnes Peacock, in Kishen Chunder Ghose v. Mt. Ashoorun, Marsh 647.
(b) that, on the death of a person, his estate immediately devolves on and vests in his legal representatives and does not remain in the air or in vacuo even for a single moment; and
(c) that no man should be prejudiced and no man’s property should be taken away except under authority of law and without offering him opportunity to show cause against the proposed action.
49. That, to the above general principles, exceptions may be made or created by statutes admits of no doubt, but, in the absence of such exceptions, the said principles must prevail and govern the particular case, As it is clear beyond dispute that, on the above general principles, the first question must be answered in the negative and the second by affirming the decision in , and by overruling the other decision, referred to therein, viz., 32 Cal WN 418, it is necessary to examine how far the said principles, so far as the instant case and the like are concerned, have been affected by any statutory enactment.
50. The statute, relevant for the purpose, is the Code of Civil Procedure, under which the sale and the proceedings under consideration were held or with reference to which the points under reference were framed. Of the Code, again, we need not concern ourselves with any provision other than Section 50 and Order 21, Rule 22, and Order 22. The decisions, again, which have an immediate bearing on the point or points under reference are to be found in ILR 12 All 440 (FB), ILR 19 All 337, 27 Ind App 216 (PC), 32 Ind App 23 (PC), 41 Ind App 251: (AIR 1914 PC 129), 55 Ind App 327: (AIR 1928 PC 162), ILH 59 Mad 461: (AIR 1936 Mad 205) (FB), AIR 1945 Pat 1 (FB), AIR 1949 Cal 299 and . I do not propose to refer to any of the other decisions, cited in the judgment of my Lord (Bachawat, J.), as their bearing on the question before us is somewhat remote and as they must yield to the more authoritative decisions which I have set out above for my express consideration.
51. We are concerned here with a case, where the judgment-debtor died in the course of execution proceedings, though, of course, after the issue of the sale proclamation. As, to execution proceedings, in view of the express terms of Order 22, Rule 12, the abatement provisions (Order 22 Rule 3 and 4) do not apply, the execution case would not end or would not be deemed to have come to an end by reason of death as aforesaid. It is, however, for the decree-holder to proceed further with it and the law entitles him so to do by taking appropriate steps under Section 50, of the Code. That section requires that, if the decree-holder chooses to proceed against the legal representatives of the deceased judgment-debtor, be will have to make the necessary application and, upon such application, the Court will pass necessary orders, which means, in effect, so far as the pending execution case is concerned, the substitution or bringing in on the record, of the said legal representatives in place of the deceased judgment-debtor and, as, in law, the estate of the deceased has already vested in those legal representatives, if they are brought on the record, as aforesaid, that estate will, as a matter of course, be represented and no legitimate grievance can, therefore, be made in that behalf. The statute, then that is Section 50 of the Code, far from engrafting any exception on the relative general principle, seeks to supplement it. A point has been raised that Section 50 is purely procedural and non-compliance with it or non-taking of steps under it would not vitiate the execution proceeding so as to reduce the eventual sale to a nullity. I do not think that this argument, so far as it is relevant here, can be accepted. Apart from the fact that the relevant part of Section 50, which prescribes the application or the making of the same, is not purely procedural, it is, at least, clear that the statute does not intend to affect the general principle, set out in item (a) above, and, accordingly, the property or the estate of the deceased judgment-debtor, which has admittedly vested in the legal representatives and which, therefore, at the relevant moment, is the property or estate of the said legal representatives, cannot be sold and cannot pass except in a proceeding, to which they are parties. The Privy Council case of 55 Ind App 227: (AIR 1928 PC 162), was not a case, where the sale has held or attempted to be held in the absence of the legal representatives of the deceased judgment-debtor, and the question there was as to the propriety of the mode, by which they were brought on the record, which, obviously, was, as held by their Lordships, purely procedural. That decision, therefore, is no authority against the above view and all that it lays down is that a mere irregularity in the mode, adopted to bring the legal representatives on record for purposes of sale of the property, which, of course was theirs, would not vitiate the sale. Indeed, the point seems to be concluded by the recent decision of the Supreme Court in , which has explained or explained away Malkarjun’s case, 27 Ind App 216 (PC), which would have furnished the strongest argument for the contrary point of view. Even before Nani Bai’s case, , Malkarjun’s case, 27 Ind App 216 (PC), had practically lost its authority and importance, except, possibly, for facts, more or less similar to or resembling its own (vide 32 Ind App 23 at pp. 35 and 36 (PC), and 41 Ind App 251 at p. 257: (AIR 1914 PC 129 at p. 132), and the scope of its application had been narrowed down and confined within very strict and stringent limits but even that limited ambit and authority appear to have been swept away by the aforesaid Supreme Court decision. Indeed, if I may point out with respect, and that underlies and practically runs throughout the relevant part of the Supreme Court decision in Nani Bai’s case, , –it is difficult to sustain Malkarjun’s case, 27 Ind App 216 (PC), on principle and the distinction sought to be drawn by the Privy Council in the above two cases cited, is not easily intelligible as a relevant distinction, or as resting on or furnishing any sound rule or principle.
52. Strictly speaking, again, Order 21, Rule 22 of the Code does not require consideration in this case, as, ex hypothesi, no question of service of notice can arise, where the party concerned is not on the record. It is plain, however, that, if the case had to be decided upon that provision, in view of its Calcutta Amendment (vide Order 21, Rule 22(3)), which, obviously marks or makes a departure from the third general principle enunciated; in item (c) above, and constitutes an exception) thereto, that principle could not be invoked and the sale would have been valid in spite of non-service of notice thereunder.
53. In the above view, which is amply supported on principle by the Privy Council case of 41 Ind App 251: (AIR 1914 PC 129), and, in particular, by the Supreme Court decision in , and also by the Full Bench decision of the Patna High Court in AIR 1945 Pat 1 and the earlier Madras Full Bench, reported in ILR 59 Mad 461: (AIR 1936 Mad 205) (FB). –and which, I may add incidentally, was taken by this Court as early as 1867 in the case of 7 Suth WR 52 (per Macpherson, J.) — The case of 32 Cal WN 418, must be held to have been wrongly decided and the contrary decision an and in the subsequent case of this Court, namely AIR J949 Cal 299, must be held to be correct and affirmed. It is only necessary to add here that ‘Sheo Prashad’s case, ILR 12 All 440 (FB), laid down an extreme proposition, unsound in principle and on authorities and based on an incorrect appreciation of the functions and duties of an executing Court, and Edge, C. J., himself hastened to distinguish it and to put limitations on it in ILR 19 All 337, decided a few years later. That distinction, however, if I may point out with respect, is itself unsound and does not save the inherent infirmities of his (Edge, C. J.’s) original proposition, as adumbrated in Sheo Prashad’g case, ILR 12 All 440, (supra).
54. I would, accordingly, agree with my Lord Bachawat, J., in answering the two questions under reference as suggested by him and also in the decision of the appeal itself, namely, in its dismissal which follows, almost as a matter of course, from the aforesaid view of the law, the point under Section 47 of the Code having been given up by Mr. Sen, in circumstances, stated earlier in the judgment of my Lord, presumably because of the decision of the Privy Council in the case of 86 Ind App 168 (PC), which, apparently and prima facie at least, supports the contrary point of view and, possibly, also because, in any view, the present suit may well be treated as a proceeding under Section 47 of the Code (vide Sub-section (3) of that section), there being no question of limitation here in view of the decision of the Supreme Court in Merla Ramanna V. Nallaparaju, , Reference answered;
