TMI Blog1967 (12) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... at Ram Lal had been sufficiently served. In execution of that decree, the house was sold and the sale certificate was issued on 21st January, 1941 in favour of Prabhu Dayal, the father of the appellant in this appeal. Formal delivery of possession was taken and the certificate of delivery of sale is dated 15th May, 1941. Admmittedly ,Ram Lal continued to live in the house even thereafter, and on 19th September, 1945, he died leaving no heir. Ram Lal was a subject of the Maharaja of Jaipur and, on Ram Lal's death, the servants of the Maharaja took possession of the house on 20th September, 1945. Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal,the father of the appellant, for possession of the house on 10th July, 1946. The su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the decree passed in that suit. It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of r. 15 of 0. 32 of the Code of Civil Procedure, so That the decree obtained against Ram Lal was a decree which has to be treated as without jurisdiction and void. In these circum- stances, the sale held in execution of that decree must also be held to be void. Learned counsel appearing on behalf of the appellant contended that this proposition should not be accepted ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hen he-Id, was void ab initio. In such a case, there is no question of any party having to resort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale, set aside. The decision of this Court in that case itself brings out this distinction by stating: It is to be noted however that there may be cases in which, apart from the provisions of rr. 89 to 91, the court may refuse to confirm a sale, as, for instance, where a sale is held without giving notice to the judgmen t-debtor, or where the court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held. This Court, thus, in that case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ortion of the judgment, on which learned counsel relied, related to the remarks made by the Privy Council when dealing with an earlier decision in Malkarjun v. Narhari(1). After discussion the ratio of that case, their Lordships at the end remarked: In coming to this conclusion, their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale; but in the present case the real purchaser was the judgment creditor, who must be., held to have had notice of all the facts. On the basis of this comment, it was urged that their Lordships of the Privy Council intended to lay down that, if the auction-purchaser was not a judgment-creditor, the sale could not be a nullity. We are unable to re ..... X X X X Extracts X X X X X X X X Extracts X X X X
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