DORAISWAMI (MINOR) Vs. CHIDAMBARAM PILLAI

JUDGEMENT

(1.) This suit was brought by one of the reversioners to the estate of one Muruga Pillai for a declaration on behalf of himself and defendants 6 and 7 that the private sale of items 1 to 8 in the plaint schedule and the Court sale of items 9 to 11 during the lifetime of Muruga Pillai's widow (1 defendant) are not binding beyond the life time of the widow, who died during the pendency of the appeal in the lower appellate Court. The District Munsif dismissed the suit in toto.

(2.) In appeal the Additional Subordinate Judge held that the Court sale of items 9 to 11 was void and gave the plaintiff a decree accordingly. He held that the private sale of item 1 to 8 by the widow under Ex. B was binding on the reversioners to the extent of Rs. 1,000 only and made the amount a charge on these items excepting item 5 and half of item 8.

(3.) The learned Subordinate Judge's reason for holding the Court sale to be void was that it took place on January 17th, 1916 after Muruga Pillai had died on December 16tti, 1915, and that in representatives of the deceased owner were brought on the record. He was of opinion that the Court had no jurisdiction to sell the properties of deceased person without any representatives being brought on the record and in support of this view he cited Ramaswami T. Bagirathi [1883] 6 Mad. 180, Krishnayya V/s. Unnissa Begam [1891] 15 Mad. 399, Groves v. Administrator-General [1898] 22 Mad. 119 and Rayarappan Nambiyar V/s. Malikandai Aketh Mayan . Besides these cases there is a recent decision of a Bench of this Court in Raghunathaswami Aiyangar V/s. Gopal Rao 1922 Mad. 307 in which Ramesam, J., in holding that a sale in execution carried out against a dead person (or no person as he says) was void and should be regarded as a nullity and had not got to be set aside, observed that it was "opposed to all notions of justice to allow legal proceedings to be taken against an estate without there being some one on the record to represent the estate." I presume that the learned Judge when he used these words had in his mind the principle of audi alteram partem which in Narayana Kothan V/s. Kaliaanasundaram Pillai [1895] 19 Mad. 219 was spoken of as a principle which could not justifiably be disregarded except where it was necessary to do so in order to protect bona fide purchasers at Court sales. If any order is passed by an executing Court against a party without notice being given to him of the application which gave rise to the proceedings, I entirely agree that the party behind whose back such proceedings are taken, will not be bound by the order. Further, if process is issued without the notice, which Order 21 Rule 22 prescribes in cases where the judgment-debtor is dead or the decree is more than one year old, I consider that the want of notice might constitute a material irregularity entitling a person whose interests have been affected, to apply either under Order 21 Rule 90 or by suit to have any sale of property that has been held upon the decree-holder's application set aside. But if the decree-holder has done all that the law requires him to do and if the judgment-debtor or one of the several judgment-debtors where there are more than one happens to die during the course of the execution of the sale warrant, or, it may be, while the auctioneer is actually holding the auction, with due respect fail to see how the sale is invalidated by the accident of the owner's death before the sale is completed. It has been suggested that as soon as a judgment-debtor dies his interest in the property passes to his legal representatives, and that the law nowhere permits the sale of a dead man's assets. On the other hand Secs.50 and 53, Civil Procedure Code, speak of "the property of the deceased" and Section 50 provides for decrees being executed against such property hi the hands of legal representatives. Although it may not be accurate to speak of a dead man as owning property, it is well understood that in law there are estates of deceased persons. The definition of "legal representative" in Section 2, Clause 11, C.P.C. speaks of such estates So long as Order 21, Rule 22(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. The operation of Order 22, Rule 4, which provides for the legal representatives of defendants who die during the pendency of a suit being brought on the record, has been excluded from execution proceedings. So a decree once passed does not become barred or incapable of being executed by reason of the death of a judgment-debtor, nor do execution proceedings abate owing to the failure of the decree-holder to bring the legal representative of a judgment- debtor on the record Order 21, Rule 22 is the only provision which deals with legal representatives of parties to decrees and that only applies to the commencement of execution proceedings. The legal representatives of judgment-debtors, who die during the course of the processes of Court being executed, are able to watch public sales without being personally served with notice. When the law only prescribes the issue of notice to them at the commencement of execution proceedings, they cannot claim as a matter of right to have fresh notice if their representation of the deceased's estate commences during the progress of the carrying out of the processes of the Court, nor are they justified in treating such processes as invalid for want of jurisdiction on the part of the Court and its officers. In my opinion the view taken in Raghunathaswami Aiyangar V/s. Gopala Rao 1922 Mad. 307 that a sale in execution carried out against a dead person is per se void is based on a fallacy, and I think we are bound to follow the judgment of the Privy Council in Malkarjun V/s. Narhari [1901] 25 Bom. 337 in preference to the decision of a Bench of our own Court. Their Lordships distinctly say that a judicial sale is not a nullity if it is held without a notice being given to the propel legal representative of a deceased person. They observe that to treat such an error (that of serving with notice a person who did not h gaily represent the estate) as destroying the jurisdiction of the Court is calculated to introduce great confusion into the administration of the law. They add that strangers to a suit are justified in believing that the Court has done that which by the directions of the Code it ought to do. They point out that when a Court tries a suit without a debtor or his estate being subject to its decree it actually never possesses the jurisdiction which it purports to exercise, but it is a different matter when the Court has by its decrees established the debtor's liability and is in the process of working it out against his estate.