ORDER
Walter Salis Schwabe, Kt., K.C.C.J.
1. A preliminary point is taken that no Second Appeal lies because it is said that this is an appeal on a petition based on there being a material irregularity in publishing or conducting the sale within the meaning of Order XXI, Rule 90, that the order made under Rule 92 setting aside the sale, was an order made by reason of that material irregularity or fraud, and that as no Second Appeal lies from orders made under Rule 92, there can be no Second Appeal here. The answer is that it may be perfectly true as regards part of the appeal, but one of the grounds on which the appellant relies is that no notice was given of the application for attachment and order for the sale of the property, and that that comes under Section 47 of the Civil Procedure Code, and is therefore appealable as a decree.
2. The only direct authority on the point is the judgment of Oldfield and Seshagiri Ayyar, JJ., in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 where, under somewhat similar circumstances which were not really so strong as this, because the failure to give notice was at a later stage, they held that, where an application is made which is partly covered by Rule 90 of Order XXI and partly not so covered, although the order purports to have been made under Rule 92 of Order XXI, a Second Appeal will lie.
3. There are dicta in other cases to the effect that, where there is absence of notice, there is a remedy under Order XXI, Rule 90 or Section 311 of the Old Civil Procedure Code which corresponds with it, particularly in the decision of the Privy Council in Malkarjun v. Narhari (1901) I.L.R. 25 Bom. 337.(P.C.) but, on looking carefully into that case, we note that this point was in no way before the Privy Council; but apart, I think that the decision in Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 is an authority, and I should myself come to the same conclusion as was come to in that case, because looking at the words of Order XXI, Rule 90, they appear to me perfectly plain. What is being dealt with there is a material irregularity or fraud in publishing or conducting a sale; and I cannot bring my mind to the view that the failure to give notice of the application for leave to attach and sell is an irregularity in publishing or conducting the sale. It seems to me that it is really a contradiction in terms. There is no sale to publish or conduct until after leave of the Court has been obtained (a) to attach the property and (b) to sell.
4. Whether or not that failure to give notice is an illegality, is a matter which is entirely irrelevant for the present purpose because it is only certain kinds of irregularities that are covered by Order XXI, Rule 90. If the omission in this case was any other kind of irregularity, whether it renders the whole sale a nullity or not, it is not brought within the wording of that rule. The preliminary point fails and this appeal must proceed.
Waller, J.
5. I agree that a Second Appeal will lie.
6. This Appeal against Appellate Order No. 45 of 1922, coming on for hearing again on Monday, Tuesday, the 24th and 25th days of September 1923, the Court (Schwabe, C.J. and Waller, J.) made the following Order of Reference to a Full Bench:
ORDER.
7. The question in this case is as to the validity of a sale held in execution of a decree for maintenance. Appellant was the 3rd defendant in the suit. The contesting respondent is the purchaser in execution. The Sub-Judge found that the sale was invalid as notice of execution under Order XXI, Rule 22, had not been issued to 3rd defendant and that the application was in time under Article 181 of the Limitation Act. Finding, further, that the property had been sold for considerably less than its proper value, he proceeded to set aside the the sale under Order XXI, Rule 90. The District Judge, on the other hand, was of opinion that notice to 3rd defendant was unnecessary, that the sale was not invalid and that the application was barred by limitation, presumably under Article 166 of the Limitation Act. He added that there was no allegation of fraud or collusion against 1st defendant. Had he said that no fraud or collusion, had been proved, he would have been more accurate. There were certainly allegations–no doubt, of a vague description–of fraud and collusion against 1st defendant and the plaintiff in the suit; Nothing, however, was alleged against the auction-purchaser, though it is now suggested that he was a party to the fraud, as a result of which the property was sold for less than its proper value. There is no evidence of any collusion between these persons.
8. The auction-purchaser is not connected with the 1st defendant’s family. It is not at all probable that the plaintiff and 1st defendant, who were on opposite sides in the suit, would have colluded together. Plaintiff had no interest whatever in getting the land sold for a low price. Her interest, if she had any, lay in the opposite direction. Nor is it apparent why 1st defendant should have conspired to bring to sale only that part of the property in which she had a life estate.
9. The evidence as to the alleged inadequacy of price is not very satisfactory but we accept the finding of the Subordinate Judge that the sale was in fact at an undervalue.
10. The finding that there was no fraud or collusion does not end the matter. The next question is whether the sale, as against 3rd defendant’s interest, is invalid or not. Third defendant had undoubtedly a vested interest in the property sold and a notice should have gone to him under Order XXI, Rule 22. It has been held in Gopal Chander Chatterjee v. Gunamoni Dasi (1893) I.L.R. 20 Calc. 370 that the omission to give such a notice renders the sale void. This decision has been approved by the Privy Council in Raghunath Das v. Sundar Das Khetri (1915) I.L.R. 42 Calc. 72 (P.C.) and followed in Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954. The last case has been dissented from in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875 where it has been decided that the non-issue of notice under Order XXI, Rule 22, is a mere irregularity and not an illegality affecting the jurisdiction of the Court to execute the decree. The Judges refused to follow the Privy Council ruling on the ground that it was passed under the old Civil Procedure Code which had in it no provision corresponding to the present Sub-rule (2) of Rule 22. The ruling in Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954 they dismissed with the remark that it had not considered the effect of Sub-rule (2). In Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63 Spencer, J., arrived at the same conclusion.
“So long” ho said “as Rule 22, Clause (2) permits an executing Court to dispense with notice for reasons to be recorded, it is difficult to see how the issue of process without notice and without recording reasons would affect the jurisdiction of the Court or would be more than an irregularity.”
11. We think that the decision in Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954 is correct and that the ruling in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875 has been too widely expressed. It may well be that, where an application has been made under Sub-rule (2) and the conditions contemplated by that sub-rule exist, the non-issue of notice without the recording of reasons would be a mere irregularity. But we are of opinion that when, as here, it is not even suggested, that the conditions required by Sub-rule (2) existed or were under the consideration of the Court, the Privy Council ruling in Raghunath Das v. Sundar Das Khetri (1915) I.L.R. 42 Calc. 72 (P.C.) should be followed. The ruling reported in Malkarjun v. Narhari (1901) I.L.R. 25 Bom. 337 (P.C.) is not an authority to the contrary; for in that case, notice was issued on a particular person under the direction of the Court but it was subsequently held that that direction was wrong and this, the Privy Council considered to be no more than an irregularity, which rendered the sale not void, but voidable. In another case, Ram Kinkar v. Sthiti Ram (1918) 27 C.L.J. 528 the Privy Council decision was followed. The Code applicable to it was no doubt, that of 1882, but the opinion was clearly expressed that the law had not been altered by Order XXI, Rule 22, of the present Code. The ruling referred to above, Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63 expressly dissents from Ragunathaswamy Iyengar v. Gopal Rao (1921) 41 M.L.J. 547 In view of the conflicting opinion on the point, we think that the best course is to refer for the decision of a Full Bench, the following question:
12. Whether, in a case where notice under Order XXI, Rule 22, has not been issued and the omission is due not to the fact that Sub-rule (2) has been applied, but to the fact that notice was not asked for, a sale held in execution is void or merely voidable, as against the person to whom notice should have been, but was not, issued?
13. If the answer to the question above propounded is that the sale is void as against the third Defendant, a further question arises–that of limitation, i.e., whether the article of the Limitation Act applicable is 166 or 181, or some other and if so which article. On this point again, there is a considerable divergence of opinion. In Seshagiri Rao v. Srinivasa Rao (1920) 43 I.L.R. 43 Mad. 313 it has been held that, when a sale is absolutely void for want of jurisdiction, the article applicable is Article 181. The same conclusion was arrived at in Ram Kinkar v. Sthiti Ram (1918) 27 C.L.J. 528. Both of these decisions have been dissented from by Oldfield and Venkatasubba Rao, JJ., in Ganapathi Mudaliar v. Krishnamachari (1922) 43 M.L.J. 184 (where also a sale was impugned as void), the first on the ground that the decision was supported by reference to an unreported case and not by any independent reasoning and the second on the ground that the relevant part of the judgment was obiter. As to the Madras case, the ratio decidendi–which the Judges possibly considered too obvious to require statement–doubtless was that a void sale need not be set aside. In the Calcutta Law Journal Case the decision, it is true, ultimately rested on Section 18 of the Limitation Act, but the question of the article of limitation applicable did arise directly in the suit and we think that the decision on it can scarcely be dismissed as obiter.
14. Another case is Babu Das Narayan Singh v. Muhammad Yusuf (1921) 61 I.C. 823; but there it was held that what had occurred was a mere irregularity and that the Court had jurisdiction to sell. In other words, the decision was that the sale was voidable and not void. It was, no doubt, that Article 166 governed all applications, “on whatever grounds,” to have an execution sale set aside, but that is not to say that the same article applies to cases where the sale is void and need not be set aside at all.
15. In a Madras case Kamayya v. Ramamma (1922) M.W.N. 176 it was held that Article 166 governed all applications, under Section 47, Civil Procedure Code, to set aside sales on the ground either of illegality or irregularity. In another Madras case Neelu Neithiar v. Subramania Moothan (1920) 11 L.W. 59 it was a notice under Order XXI, Rule 66, that was in question. The decision was that Article 181 did not apply. There is, however, in the course of the Judgment a reference to the issue of the notice required by Order XXI, Rule 22, as being a condition precedent to the validity of any execution proceedings. One of the Judges was a party to the decision in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875.
16. In Ragunathaswamy Iyengar v. Gopaul Rao (1921) 41 M.L.J. 547 the Judgment in which Oldfield, J., concurred was delivered by Ramesam, J., who laid down that where an execution sale is void, it need not be set aside. The question of limitation did not arise, but, if it had, presumably the decision would have been that Article 166 did not apply. This decision was dissented from in Doraswami v. Chidamburam Pillai (1924) I.L.R. 47 Mad. 63 by Spencer and Krishnan, JJ. In A.A.O. No. 74 of 1922, Spencer and Devadoss, JJ., dissented from Seshagiri Rao v. Srinivasa Rao (1920) I.L.R. 43 Mad. 313, and followed Ganapathi Mudaliar v. Krishnamachari (1922) 43 M.L.J.184. In A.A.O. No. 77 of 1921, Spencer, J., did not decide the question of limitation. Venkatasubba Rao, J., held that the sale in question is void. He held further that the application then under consideration was, in substance, one to declare that the sale was inoperative and that therefore Article 166 could not govern it.
17. We need refer to only two more Madras cases. In one of them Muthiah Chettiar v. Bava Sahib (1914) 27 M.L.J.605 Oldfield and Tyabji, JJ., disagreed as to the applicability of Article 166; Oldfield, J., was of opinion that the application, though it may have been made under Section 47, Civil Procedure Code, was essentially one to set aside a sale and was therefore barred under Article 166. In the other, Payidanna v. Lakshminarasamma (1915) I.L.R. 38 Mad. 1076 the question we are now considering did not arise. Sadasiva Ayyar, J., however, did refer to it. His opinion was that, if the application he was dealing with was one to set aside the sale as distinguished from one for a declaration of the invalidity of the sale as against the applicant’s rights, it was barred by limitation under Article 166.
18. Only one other decision need be mentioned–that in Mani Singh Mandhata v. Nawab Bahadur of Murshadabad (1919) I.L.R. 40 Calc. 694 which is in favour of the view that Article 166 governs all applications under Section 47, Civil Procedure Code. As the correctness of the decision in Seshagiri Rao. Srinivasa Rao (1920) I.L.R., 43 Mad., 313 has been doubted, we think that the question should be referred to a Full Bench for final decision.’ Essentially the question is this–where a sale in execution is void against a particular person, is it a necessary part of his remedy that he should ask to have the sale set aside? If the answer is in the affirmative, then probably Article 166 applies. If on the other hand, he need not get the sale set aside but his application can be treated as one for a declaration that the sale is void as against him, Article 181 would seem to govern the case. The question we would refer to the Full Bench is this:
19. Where a sale in execution is void as against a party and he applies for relief under Section 47, Civil Procedure Code, or otherwise, what is the period of limitation that governs his application?
On This Reference:
20. V. Ramaswami Ayyar (with K. Rajah Ayyar) for appellant.–As the decree is more than a year old, it is essential that notice to the petitioner (the judgment-debtor) under Order XXI, Rule 22, Civil Procedure Code, should issue. A sale held without such notice is one without jurisdiction and is a nullity. Reliance was placed on the cases quoted in favour of this view in the Order of Reference and on Raj Bullub Shaha v. Gossain Dass Shaha (1870) 13 W.R. 400 Srinivasa Aiyangar v. Narayana Aiyangar (1917) 33 M.L.J. 539 and Fani v. Surendra (1922) 35 C.L.J. 9. A void sale need not be set aside, but if any application is made to set it aside it is governed by Article 181 and not Article 166. Reliance was placed on the cases quoted in the Order of Reference in favour of this view and on Vachali Rohini v. Kombi Aliassan (1919) I.L.R. 42 Mad. 753 (F.B.) Abdul Karim v. Islamunnissa Bibi (1916) I.L.R. 38 All. 339 Khiarajmal v. Daim (1905) I.L.R. 32 Calc. 296 (P.C.) and Kishen Chunder Ghose v. Ashoorun (1863) 1 Marsh 647 quoted in the last case.
21. K.S. Krishnaswami Ayyangar for T. Narasimha Ayyangar (with N.S. Rangaswami Ayyangar) for respondent.–Non-issue of notice under Order XXI, Rule 22, does not vitiate a sale. It is only an irregularity. Reliance was placed on the cases quoted in favour of this view in the Order of Reference and on Rewa Mahton v. Ram Kishen Singh (1887) I.L.R. 14 Calc. 18 (P.C.) Sitaramayya v. Gopalakrishnamma (1920) I.L.R. 43 Mad. 57 Blanchenay v. Burt (1843) 4 Q.B. 707; 114 E.R. 1034 and Freeman on Void Judicial sales, page 97. Possibly want of notice to a legal representative against whom execution is applied for may vitiate a sale as against him as he is a stranger to the decree and has to be newly brought on record. It is not Order XXI, Rule 22, that gives jurisdiction against the legal representative but Section 50 under which notice has to go to him before execution can be ordered against him. Hence cases holding that execution sales without notice to legal representatives are a nullity are not to the point. Even if the sale is void, Article 166 will apply as being the specific article.
22. V. Ramaswamy Ayyar in reply.–Absence of notice whether under Clause (a) or (b) of Order XXI, Rule 22, must result in the sale becoming a nullity; there cannot be any difference between the two cases in the result; See In the matter of the petition of Ramessuri Dasee (1881) I.L.R., 6 Calc., 103, Sahdeo Pandey v. Ghasiram Gyawal (1894) I.L.R. 21 Calc. 19 Gurudas Biswas v. Bhowanipore Zamindary Co. Ltd. (1921) 25 C.W.N. 972.
Opinion:
Schwabe, C.J.
23. If this matter were free from authority I should incline to the view that non-compliance with the provisions of Order XXI, Rule 22, was a material irregularity, and not an illegality which would make the subsequent sale a nullity. In England there was a rule of Common Law that judgments after the lapse of a year and a day could not be executed unless an order for what was known as a scire facias was first obtained. There are authorities to the effect, that the disregard of that rule rendered a subsequent sale in execution voidable and not void Blanchenay v. Burt (1843) 4 Q.B. 707 and Goodtitle v. Badtitle 9 Dowling Prac. Cas. 1009; and the same rule applies in America–see Freeman on Void Judicial Sales, page 97. But in my judgment there are authorities here to the contrary which preclude such a view being taken here. In Gopal Chunder Chatterjee v. Gunamoni Dasi (1893) I.L.R. 20 Calc. 370 their Lordships of the Calcutta High Court laid down that a notice under Section 248 of the Code of Civil Procedure of 1882 was necessary in order that the Court should obtain jurisdiction to sell a property by way of execution as against the legal personal representative of the deceased judgment-debtor. In Raghunath Das v. Sundar Das Khetri (1915) I.L.R. 42 Calc. 72 (P.C.) the judgment-debtor had become an insolvent and a sale in execution took place without proper notice under the same section, and their Lordships of the Privy Council held that the sale was a nullity. In the case before us no notice has been given of execution proceedings to the infant petitioners although a year had elapsed since the decree, but I can see no difference in principle between the position of legal representatives of a deceased judgment-debtor, or the Official Assignee of the judgment-debtor’s estate, and that of a party to the suit, who has not himself been served with notice of an application for execution, more than a year after the decree and is ignorant thereof. The provision for notice in the two cases, of legal representatives, and of parties when more than one year has elapsed, is contained in the same rule, Order XXI, Rule 22, which is in the same terms as Section 248 of the Civil Procedure Code of 1882, and I do not think that it is possible to hold that in one case failure to give notice is a mere irregularity while in the other it results in the Court having no jurisdiction to sell at all. In Shyam Mandal v. Satinath Banerjee (1917) I.L.R. 44 Calc. 954t Mookerjee and Cuming, JJ., held that a proper notice under Order XXI, Rule 22, after the lapse of one year from the decree, was the very foundation of the jurisdiction itself, and that failure to give it rendered a sale inoperative even as against a stranger. It is right to point out that in that case an application was made to prevent the confirmation of the sale before it was completed and no question of limitation arose, but the grounds of the decision are quite clear and, unless we disagree with them, they are conclusive of this point. In Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875 a bench of this Court held that the non-issue of notice under Order XXI, Rule 22, was a mere irregularity, find not an illegality affecting the jurisdiction of the Court to execute the decree, and in Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63 Spencer, J., took the same view; and Krishnan, J., stated that he would have been in favour of referring the matter to a Full Bench but for the decision of the Privy Council in Malkarjun v. Narhari (1901) I.L.R. 25 Bom. 337 (P.C.) which he considered, rendered it unnecessary to do so. The ground on which the Privy Council cases referred to above were sought to be distinguished from this case, was that Order XXI, Rule 22 differed from Section 248 of the Civil Procedure Code of 1882, in that Order XXI, Rule 22, provides that the Court can issue process in execution without issuing the prescribed notice, if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice, while there was no such provision in the Code of 1882; and that as there is now discretion in the Court to excuse the notice it follows that the failure to give such notice must be a mere irregularity. I am not able to follow this reasoning. I do not appreciate how the failure to give such notice can have any different effect under the new Code to what it had under the old Code, merely because the new Code provides that in certain cases the Court can dispense with the notice. In my judgment the only effect of this pub-section is to give the Court jurisdiction in certain cases in which without it the Court would have none. Malkarjun v. Narhari (1901) I.L.R. 25 Bom. 337 (P.C.) is not an authority to the contrary, for in that case notice was served on a person whom the Court had ordered to be treated as the legal representative of a deceased party and who, it was subsequently held, was not the proper legal representative and the Privy Council held that this was a mere irregularity as the Court was acting within its jurisdiction, though wrongly. Rewa Mahton v. Ram Kishen Singh (1887) I.L.R. 14 Calc. 18 (P.C.) was relied upon as an authority against, this view. In that case there were cross decrees in separate suits and execution was ordered on one of them without taking into account the other, although it was provided by Section 245 of the Code of 1877, now Order XXI, Rule 18, that execution can only issue for the balance if any between the two decrees, and it was held by the Privy Council that, this was an irregularity and did not render the sale void. Their Lordships held that the Court had jurisdiction to sell, and that the purchaser was no more bound to enquire into the correctness of the order for execution than into the correctness of the judgment upon which the execution was issued. This is an illustration of a case where the Court was acting within its jurisdiction on the proper interpretation of the section of the Code applicable, and does not assist in arriving at the proper interpretation of another section. It follows that the answer to the question referred is that the sale is void.
24. The other question referred is, what is the period of limitation that governs an application for relief where the property has been sold in execution and that sale is void? If the application is an application under the Code of Civil Procedure to set aside a sale in execution of a decree, the article of the Limitation Act of 1908, applicable is 166 and the period of limitation is 30 days from the date of the sale. If not, the application is one for which no period of limitation is provided else where and it will be governed by Article 181, the period of limitation being three years from the date when the right to apply accrued. Lord Davey delivering the judgment of their Lordships of the Privy Council in Khiarajmal v. Daim (1905) I.L.R. 32 Calc. 296 (P.C.)–a case where the Court had sold without jurisdiction the property of persons who were not parties to the proceeding or properly represented on the record–said:
As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be found in the judgment of Sir Barnes Peacock in Kishen Chunder Ghose v. Ashoorun (1863) 1 Marsh 647.
25. That is direct authority for the proposition that in such a case it is not necessary to apply to the Court to set aside the sale. If it is possible for the petitioner in this case to proceed without applying to set aside the sale he could avoid the harsh limitation imposed by Article 166. In my judgment he can do so. He could, but for the provisions of Section 47 of the Civil Procedure Code of 1908, bring a suit for possession of the property sold, and the purchaser would not be able to rely upon the Court sale as a defence, because that sale is a nullity and the Privy Council has held that it is not necessary to take any steps to set it aside. By reason of Section 47, all questions arising between parties to the suit relating to execution ought to be determined by the Court executing the decree, and not by a separate suit, and it has been held that the fact that a Court purchaser is a necessary party would not prevent the application of this rule. But this is only a question of procedure and the Court may treat the proceeding under this section as a suit subject to any objection as to limitation. It is unnecessary to consider whether the effect of this is that the period of limitation to be applied is the period provided by the Limitation Act in respect of applications or that provided in respect of suits. If the former, the period of limitation will be three years under Article 181. and if the latter, the twelve years provided in the case of suits to recover possession of immoveable property. I cannot agree with the view that all applications under Section 47 are governed by Article 166; nor do I think that the statements in cases to that effect are more than obiter dicta; the intention being to express the view, with which I agree, that if an application is an application to set aside a sale in execution of a decree it matters not whether the application is made under Section 47 or under Order XXI, Rule 90. Seshagiri Rao v. Srinivasa Rao (1920) I.L.R. 43 Mad. 313 is a direct authority for the proposition that when a sale is absolutely void for want of jurisdiction the article applicable is Article 181, and in my judgment, in view of the decisions of the Privy Council referred to above, that case was rightly decided.
26. The petitioner is the guardian of infants who were properly before the Court as defendants in the original suit, and their interest in the property was liable to be sold in execution in satisfaction of the decree, and they can only be permitted to recover possession of the property on payment to the purchaser of what he has paid, together with interest thereon at 6 per cent, less any amount he may have received for mesne profits, and in the absence of agreement, this petition must go back to the Court of first instance to ascertain the amount and fix the date of payment and make the necessary order for carrying out this direction. In view of the fact that the petitioner chose to frame his application under Order XXI, Rule 90, and to make unfounded charges of fraud against the respondent, there will be no costs here or below.
Ramesam, J.
27. The facts of the case and questions referred to the Full Bench are stated in the Order of Reference.
28. The first question is–whether the sale is void, no notice having been issued under Order XXI, Rule 22. Three possible views may be taken on the effect of want of notice under Order XXI, Rule 22 of the new Code:
(1) The want of notice is only an irregularity–This is the view taken by Oldfield, J., in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875, and I agreed with his judgment.
(2) The sale is void–This is the decision of the Privy Council under the old Code in Raghunath Das v. Sundar Das Khetri (1916) I.L.R. 42 Calc. 72 (P.C.), and it may be said that the addition of Clause (2) in the new Code does not make any difference when the mind of the Court was not applied to the need for notice.
(3) An intermediate view may be taken, viz., if. the case is one to which Clause (a) of Sub-section (1) of Rule 22 applies, then the want of notice is merely an irregularity; and if Clause (b) applies, the sale is void for want of notice. In this way Raghunath Das v. Sundar Das Khetr (1915) I.L.R. 42 Calc. 72 (P.C.) may be distinguished.
29. Now, I confess there is something to be said in favour of each of these views. All that can be said in favour of (1) has been said by Oldfield, J., in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875 (with which I agreed) and by Spencer, J., in Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63.
30. Incidentally I may point out that the point does not strictly arise in Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63. There, the sale took place on 17th January 1916. The judgment-debtor died on 16th December 1915. The application for attachment and for sale must have been ordered and the proclamation of sale must have been settled before his death. It does not appear that an application for execution had to be made or was made after his death, and if there was none, it cannot be said that Order XXI, Rule 22, was violated. If the sale in that case was void, it must be only on the ground that the judicial proceeding after the death of the judgment-debtor, and without bringing any legal representative on the record, was void, as held by Oldfield, J., and me in Ragunathaswamy Iyengar v. Gopaul Rao (1921) 41 M.L.J. 547. but Spencer and Krishnan, JJ., dissented from this view. In the judgment of my Lord, my Lord has given reasons against adopting the reasons of the decision in Viswanathan Chetty v. Somasundaram Chetty (1922) I.L.R. 45 Mad. 875 and of Spencer, J., in Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63.
(2) The second view adopted in Shyam Mandal v. Satinath Banerji (1917) I.L.R. 44 Calc. 964 (dissented from by Spencer, J., in Doraswami v. Chidambaram Pillai (1924) I.L.R. 47 Mad. 63. is supported by the judgment of the Privy Council in Raghunath Das v. Sundar Das Khetri (1815) I.L.R. 42 Calc. 72 and now by my Lord the Chief Justice. I understand that my brother Waller, J., also agrees with this view.
(3) The third view was urged before Oldfield, J., and myself and was rejected by us in Viswanathan Chetty v. Somasuudaram Chetty (1922) I.L.R. 45 Mad. 875. As my Lord now points out, there is something to be said in its favour, but the language of the Judicial Committee which does not make any distinction between Clause (a) and Clause (b) of Section 248 of the old Code (corresponding to Order XLI, Rule 22 of the present Code) prevents us from accepting it.
31. With no strong inclination in favour of any one of the three views stated above, and in order that our judgment may be unanimous, I would formally drop the conclusion I adopted in Viswanathan Chetty v. Somamndaram Chetty (1922) I.L.R. 45 Mad. 875 and agree with my Lord and Waller, J., on the first question referred to the Full Bench.
32. The second question referred to the Full Bench presents no difficulty. Once we are agreed that Raghunath Das v. Sundar Das Khetri (1815) I.L.R. 42 Calc. 72 applies, that case is conclusive that the sale has not got to be set aside. Only if it has to be set aside, Article 166 applies. If not, Article 181, when the matter arises under Section 47 or Article 144 when the question arises in a suit (as in Raghunath Das v. Sundar Das Khetri (1815) I.L.R. 42 Calc. 72 would apply. I agree with my Lord’s proposed answer to the second question and with the further order as to mesne profits and costs.
Waller, J.
33. I agree entirely with the judgment of the learned Chief Justice and have nothing to add to it.