KANCHAMALAI PATHAR Vs. RYSHAHAJI RAJAH SAHIB (DECEASED)

JUDGEMENT

(1.) The facts out of which this Reference arises can be briefly stated. In execution of a decree against the sole defendant in a suit the decree-holder attached certain lands of the judgment- debtor and brought them to sale.

(2.) The sale was fixed for 15 September, 1927 and took place on 16 September, 1927 and the property was knocked down to the bid of the present appellant. But in the meantime the judgment-debtor had died on 8 September, 1927. His sons, the Respondents to this appeal, put in a petition under Section 47 and Order 21, Rule 90 to have the sale set aside. In the affidavit supporting this petition it is alleged that the decree-holder, notwithstanding that he and his vakil were aware of the judgment-debtor's death before the date of the sale, took no steps to bring on record the legal representatives of the deceased judgment-debtor. It is true that no application was made under Section 50 Civil Procedure Code for leave to execute the decree against the legal representative and that no notice was served on the legal representatives in accordance with Order21, Rule 22(1).

(3.) The Subordinate Court confronted with some divergent rulings of this High Court felt bound to follow the decision of Phillips, J., in Rajayya V/s. Annapurnamma (1925) 50 M.L.J. 662 and held that the sale was void against the legal representatives of the deceased. The auction- purchaser has appealed against this decision.