BALDEO PRASAD Vs. KUSAM SINGH

JUDGEMENT

(1.) THE question whether a second appeal lies has been argued before me, and for the sake of convenience I refer to the parties as appellants and respondents.

(2.) MY predecessor directed that the petition to this Court should be treated as an application for revision, but this order was made without hearing the appellants, and it is open to me to re-consider it. The appellants were decree-holders in the first Court; the respondents Nos. 1 to 4 were judgment-debtors. Their property was advertised for sale in execution of a decree and was sold to Respondent No. 5 on 30th March 1925; the sale was confirmed on 19th June 1925. The judgment-debtors applied for setting aside the sale on 11th July 1925, putting forward a number of grounds. The learned Judge of the first Court held that this application was barred by limitation. The lower appellate Court held that there was one ground with respect to which Article 166 of the Limitation Act did not apply as the question raised was not one that falls under Order 22, Civil P.C. This ground is that the guardian of the minor judgment-debtors died on 14th March 1922 and therefore the sale was a nullity. The Judge remarked that the judgment-debtors' application should be entertained under Section 47, Civil P. C, and was therefore governed by Article 181 of the Limitation Act. The appeal was allowed and the case was sent back to the first Court for a fresh decision.

(3.) I have now to consider whether the sale was a nullity. The learned Counsel for the appellants relies on Doraswami v. Chidambaram Pillai A.I.R. 1924 Mad. 130. In that case the judgment-debtor died after the proclamation of sale, and his legal representatives were not brought on record before the sale actually took place. It was held that the sale was not a nullity. It seems clear that if this decision is good law the appeal must succeed. In Net Lall Sahoo v. Sheikh Kareem Bux [1896] 23 Cal. 686 the facts agreed even more exactly with the facts of the case I am considering. The sale was held after the death of guardian ad litem of a minor defendant without appointment of a fresh guardian. It was held that the absence of a guardian ad litem did not affect the validity of the proceedings.