TMI Blog1935 (10) TMI 9X X X X Extracts X X X X X X X X Extracts X X X X ..... l 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. 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. 4. The question narrows itself down to this: Can a decree holder whose decree is unsatisfied when the sole judgment debtor dies execute that decree without having recourse to Section 50? 5. The sections says: Section 50 (Sub-section 1): Where a judgment-debtor dies before the decree has been fully satisfied, the holder of the decree may apply to the Court which passed it to execute the same against the legal representative of the deceased 6. Sub-section (2) limits the liability of the legal representative when the decree is executed against him to the extent of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... son who is not a party to the action. It is against all principle to proceed against him until he has been brought before the Court or all proper steps to bring him before the Court have been taken ineffectually . Those observations appear to me to be very pertinent to the case where the Court proceeds in execution of a decree made against A to sell property which on A's death has devolved on B without the opportunity to B of coming before the Court to shew cause why execution should not proceed against him. 9. But the question on which judicial opinion in this Country has been so acutely divided is whether the application under Section 50 and the notice under Order 21, Rule 22 are the foundation of the Court's jurisdiction, so that a sale in execution without these formalities will be void; or whether absence of these formalities amounts to nothing worse than an irregularity which may or may not serve to avoid the sale. But it seems to me that since the Privy Council ruling in Raghunath Das v. Sundar Das Khetri the subject is no longer open to controversy. 10. Their Lordships in Malkarjun v. Narhari had previously to consider the effect of an application under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been held by a Full Bench of this Court in Rajagopala Aiyar v. Ramanujachariar I.L.R.(1923) 47 Mad. 288 : 46 M.L.J. 104 (F.B.) that the effect of this Sub-rule is not to make the issue of a notice a matter which does not pertain to the jurisdiction, but is by way of giving to the Court a special power to dispense with the issue of a notice in the exceptional cases specified. I agree with that interpretation, and it is supported by the views of other High Courts in Manmatha Nath Ghose v. Lachmi Debi I.L.R.(1927) 55 Cal. 96 and Smith v. Kailash Chandra Chakravarty I.L.R.(1931) 11 Pat. 241 On the facts of the present case too, even if the Court had been moved under Section 50, I think there is nothing which have justified the Court in exercising its power under Sub-rule 2. For these reasons I am of opinion that the sale is void, and that this appeal should be dismissed with costs. S. Varadachariar, J. 12. I agree. On behalf of the appellant it has been contended by Mr. Srinivasa Aiyangar that as the judgment-debtor died only a week before the sale and no judicial act remained to be performed during the interval, the omission to bring the legal representative on record before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egal representative proceedings in execution started against the deceased judgment-debtor and pending at his death. Finally, he relied on the principle that an attachment brings the property attached into 'custodia legis' and argued that thereafter it is the power and duty of the Court to carry out the purposes for which the attachment had been effected and the violation of any provision of the processual law at subsequent stages cannot affect the 'jurisdiction' of the executing Court but can at best only amount to irregularities to be dealt with under Order 21, Rule 90, Civil Procedure Code. 14. The theory that on the death of a person, proceedings for recovery of a debt due by him are taken only against his 'estate' and not against his 'legal representative' does not seem to be justified either by legal history or by the language of the Procedure Code. In discussing the development of the law relating to the heir's liability for debts due by the ancestor, Justice Holmes (Common Law, Ch. X) refers to the rule of the Roman law making the heir (if he enters on the inheritance) liable for all the debts of the ancestor, (whatever may be the exten ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pply when the title has devolved on some one who is before the Court.' The same principle ought to apply to an execution proceeding, though Order 22 of the Civil Procedure Code does not in terms apply to execution proceedings. On page 137 Cotton L.J., observed: It is quite new for me to hear it alleged that there is anything in the rules to enable the Court to make an order against a person who is not a party to the action. It is against all principle to proceed against him until he has been brought before the Court or all proper steps to bring him before the Court have been taken ineffectually 16. In Stewart v. Rhodes (1900) 1 Ch. 386 Stirling J., points out that the effect of the order granting leave to issue execution against the representative is to make the representative the judgment-debtor. On page 402 Lindley M.R. preferred the view that the order granting leave 'dispenses with the necessity of a judgment' but neither of them contemplates the possibility of execution against the 'estate' of the deceased without leave under Order 42, Rule 23, Rules of the Supreme Court. In Rojagopala Aiyar v. Ramanujachariar I.L.R.(1923) 47 Mad. 288 : 1923 46 m.L.J. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n in respect of goods that vested in the executor Under the Common Law, if a testator sole defendant died after judgment the plaintiff could issue execution against the goods of the testator without any order, if the Judgment were recovered within a year before his death. (See William's Executors Part IV, Book, II Ch. I Section 2--11th Edition p. 1353).The author adds: But now by Order 42 Rule 23, if any change has taken place by death in the parties liable to execution, leave must be obtained to issue execution against the goods of the testator This order must, it would seem, be obtained on notice to the exeeutor. 20. It was another rule of the English Law, that a writ, though put into the hands of the Sheriff after the judgment debtor's death took effect from the teste of the writ. For the history of this rule see judgment of Fletcher Moulton L.J., in Johnson v. Pickering (1908) 1 K.B. 1 . To avoid misapprehension arising from observations in some of the English cases reference may also be made to another principle of the English law that judicial acts are to be considered as having taken place at the earliest possible period of the day on which they are done. In Wr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1877 and since then execution is to be had only against the 'legal representative' see observations in Dunput Sing v. Ranee Rajassuree (1871) 15 W.R. 476 and Chathekelan v. Govinda Karunniar I.L.R.(1892) 17 M. 186 : 4 M.L.J. 59. Even while Act VIII of 1859 was in force, it was observed by Phear J., in Shurfun Bebee v. The Collector of Sarun (1868) 10 W.R. 201 that by the fact of the debtor's death, his properly passes from him. 'It may be that it will, in the 'hands of the transferee, remain still liable to satify the deceased's debts; but if so, the transferee, for the same reason, becomes the representative of the deceased for the payment of those debts, and the proper mode of getting at such property of the deceased as he holds, is to put him on the record in the place of the deceased in the ordinary mode which would necessitate the establishment of his representative character, or else to bring a regular suit against him. There is no ground for treating him as if he were holding benami for the dead man. 24. In Madho Prasad v. Kesho Prasad I.L.R.(1897) 19 All. 337, Sir John Edge (whose judgment in Sheo Prasad v. Hira Lal I.L.R.(1889) 12 All. 440 was mu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng several rival claimants thereto the decree-holder bona fide chose him as being in possession of or having the best prima facie title to the estate. 26. Is the application of the above principles affected by the fact that the property of a jugment-debtor has been attached in execution before his death? The observations of the Judicial Committee in Suraj Bunsi Koer's Case - Suraj Bunsi Koer v. Sheo Prasad Singh do not suggest that there will be no devolution of the attached property on the successor but only that he would take it subject to the liability of discharging the particular decree debt. Though their Lordships speak of the proceedings having constituted in favour of the decree-holder 'a valid charge upon the land', Courts in India and even the Judicial Committee in later cases have hithertofore held that an attachment does not according to the Indian Law create any interest in the land or convert the attaching decree-holder into a 'secured' creditor In a very recent case Ananta Padma-nabhaswami v. Official Receiver, Secunderabad Lord Thanker-ton has used language which is calculated to revive this controversy; but even taking the attaching decree-ho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Abdur Rahman v. Shankar Dat Dube I.L.R.(1895) 17 All. 162 a Division Bench interpreted the Full Bench Judgment in Sheo Prasad v. Hira Lal I.L.R.(1889) 12 All. 440 (F.B.) as depriving the Court of the power to add the legal representative in such proceedings. A course of decisions in this Presidency beginning from Ramaswami v. Bagirathi I.L.R.(1883) 6 Mad. 180 have held that notwithstanding attachment during the judgment-debtor's life-time, the property could not be validly sold after his death unless his representative was brought on record. See Krishnayya v. Unnissa Begum I.L.R.(1891) 15 Mad. 399 Narayan Kothan v. Kalyanasundaram Pillai I.L.R. 19 Mad. 219 Groves v. Administrator General Madras I.L.R.(1998) 22 Mad. 119 Rayarappan Nambiar v. MallikandiAkot Mayan AIR1914Mad297(2) , Raghunathaswami v. Gopaul Rao (1921)41MLJ545 . Rajayya v. Annupurnanima (1925) 50 M.L.J. 662 and Kanakasapapathi v. Ven-katarama Aiyar (1909) 5 I.C. 339. The learned Judges of the Allahabad High Court dissent from this view because (i) in their opinion Section 234 of the Code of 1882 could have no application to a case where by reason of the subsisting attachment the legal representative could not hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e later cases in Calcutta have merely followed the decision in Bepin Behary Bera v. Sasi Bhusan Dhatta 18 C.W.N. 766 . The very fact that in several judgments of the Calcutta High Court (as also in the judgment of the Privy Council in Malkarjun v. Narhari (1889) L.R. 27 IndAp 216 ; I.L.R. 25 Bom. 337 : 1889 10 M.L.J. 368 (P.C.) a suit governed by Article 12 of the Limitation Act is contemplated will show that the mere use of the word 'voidable' or the expression ' set aside ' will not necessarily involve the conditions imposed by Section 311 (Order 21, Rule 90). cf. Erava v. Sidramappa I.L.R.(1895) 21 Bom. 424 and the cases prior to the Code of 1908 setting aside a sale on the ground of fraud). It may be noted in passing that in the present case, the application was made within 30 days of the sale and before its confirmation and it can make no difference whether the sale is held to be 'void' or 'voidable' so long as the conditions of Order 21, Rule 90, are not insisted on. So far as this High Court is concerned, the decision in Ramaswami v. Bagirathi I.L.R.(1883) 6 Mad. 180 has been uniformly followed and is not clear whether even in Doraiswami v. Ch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Empeor I.L.R.(1930) 58 Cal. 940 and in Yakub v. Mahadev AIR1932Bom509 the omission to record reasons for taking action under that clause is only an 'irregularity' the description of the first clause as 'mandatory' may sometimes lead to an illogical position. I may in this connection refer to the observations of Chitty, J., in Richer son In re.: Scales v. Heyhoe (1893) 3 Ch. 146 on the construction of Order 16, Rule 46, Rules of the Supreme Court, which empowered the Court in certain circumstances to dispense with service on the representative of a deceased person. The learned Judge said 'there must be a constat on the face of the order that the attention of the Judge was called to the point and that he decided to proceed'. It is however sufficient for the present purpose to point out that Clause (2) is only negative in form, in that it does not preclude the Court from issuing execution without issuing a notice under Clause (1) and that if on general principles or on a proper construction of Section 50, the Court has no jurisdiction to sell a dead man's estate, Clause (2) of Order 21, Rule 22, will not operate to confer such jurisdiction on the Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) 20 Cal. 370 which the Judicial Committee approve of in Raghunath Das v. Sunder Das Khetri (1914) 41 I.A. 251 : I.L.R. 42 Cal. 72 : 27 M.L.J. 150 (P.C.) the finding of the lower appellate Court was that the auction purchaser had acted bona fide but the High Court nevertheless held the sale void. In the period anterior to the confirmation of the sale, this argument has even less force because it is not the principle of law that during this period an auction-purchaser has anything like an 'absolute' right, to insist on the sale being confirmed, cf. Rajah of Kalahasti v. Maharajah of Venkatagiri (1913)25MLJ198 and Tangaturi Jagannatham v. Seshagiri Rao (1916) 20 M.L.T. 479. In cases falling under Order 21, Rule 90, the fact that the auction purchaser may have acted perfectly bona fide is no bar to the setting aside of the sale. 32. Coming next to considerations of convenience, it is by no means clear that they point necessarily or even predominantly in favour of the course contended for, on behalf of the appellant. If it may seem a hardship that a decree-holder or auction-purchaser should be frustrated or defeated by the death of the judgment-debtor of which they may not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... If the Court has no jurisdiction to sell the property under such circumstances, it is certainly void. If it has, then it is only voidable and the further question arises, is the omission to implead the legal representatives or to issue a notice to them a material irregularity sufficient by itself to have the sale set aside or must substantial injury be shown? Therefore the main question for decision is had the Court jurisdiction to sell? Jurisdiction may be defined to be the power of a Court to hear and determine a cause, to adjudicate or exercise any judicial power in relation to it. Such jurisdiction naturally divides itself under three broad heads, (vis.,)(1) with reference to the subject-matter, (2) the parties, (3) the particular question, which calls for decision. A court cannot adjudicate upon a subject-matter which does not fall within its province as defined or limited by law * * * *. As regards jurisdiction in relation to persons, a Court cannot act upon persons, who are not legally before it, upon one who is not a party to the litigation. * * * *. As regards jurisdiction in regard to the particular question which a Court assumed jurisdiction to decide, it can pass jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e property owned by him ceased to be his, and became the property of his heirs subject, of course, to the liabilities and obligations created by him 39. The expression 'the estate of the judgment-debtor' is used in the several sections of the Civil Procedure Code, to indicate the quantum of liability and to signify that the legal representative is to pay from and out of the estate which was of the deceased and devolved on him in contrast to what was already owned by him. That it is the legal representative that becomes in fact liable will be clear if the theory on which this liability is fastened is understood. The notion of the continuance of the existence of the ancestor in the heir is largely involved in the conception of succession and by the resort to this fiction, the rights and obligations which were attached to his person were deemed to continue, so much so that the heir was even held liable personally for the debts of the deceased but now the law has modified it and limited the liability to the extent of the estate which he has in-herited and he is rendered liable personally only if he is unable to prove that he duly applied the property he got. As Salmond says: ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se, the Court cannot regain the jurisdiction which it has lost till the representative is impleaded and made the judgment-debtor and the property which became his cannot be sold and no right thereto would pass to the execution purchaser. 43. That it is obligatory to implead the legal representative is clear from the various enactments relating to civil procedure passed from time to time by the Legislature. The provisions of Act VIII of 1859 relating to this were Sections 210 and 211 and 203. Section 210 corresponded to Section 234 of Act XIV of 1882 and Section 50 of Act V of 1908 and Sections 211 and 203 to Section 51 of Act V of 1908. Section 210 is in these terms: If any person against whom a decree has been made shall die before execution has been fully had thereon, application for execution thereof may be made against the legal representative or the estate of the persons so dying as aforesaid and if the Court shall think proper to grant such application, the decree may be executed accordingly. 44. This section was interpreted to mean that the property of the deceased in the hands of a person other than the legal representative, can be proceeded against, making him a p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 41 I.A. 251 251 : I.L.R. 42 Cal. 72 : 1914 27 M.L.J. 150 (P.C.) where after an order for sale, the judgment-debtor became insolvent, their Lordships assume that notice under Section 248 should go to the Official Assignee and on that basis make the following observations: As laid down in Gopala Chandra Chatterjee v. Gunamani Dasi I.L.R.(1892) 20 Cal. 370 a notice, under Section 248 of the Code is necessary in order that the Court should obtain jurisdiction (the italics are mine) io sell property by way of execution against the legal re-presentative of a judgment-debtor. 49. This case is an authority for two propositions: (1) Whatever the stage of execution, whenever a judgment-debtor dies, the presence of a legal representative is necessary before further proceedings can be had. (2) It is a case of jurisdiction and not a case of mere irregularity because there would be no party on the record until the legal representative is impleaded. 50. The Madras High Court before the passing of the Act V of 1908, has consistently taken the view, differing from the Allahabad decision, that if the judgment-debtor dies before the decree has been fully executed, it is obligatory on the ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al representatives on the record being minors or insane - cf. Narayana Kothan v. Kalyanasundaram Pillai I.L.R.(1895) 19 Mad. 219 and not represented by proper guardian or no guardian there is no want of jurisdiction in such cases but it will be a case of irregularity or even 'material irregularity' sufficient in itself to invalidate the sale. The argument based on Order 21, Rule 22 may be briefly dealt with. It may be legitimate to contend that if there is a judgment-debtor on the record, there is always jurisdiction to sell and omission to issue a notice would not take away jurisdiction and Order 21, Rule 22, Clause (2) is intended to apply to cases coming under Clause (a), but the legislature has clubbed both (a) and (b) of Clause (1) together and the issue of a notice is made mandatory. What the legislature contemplates is there must be an application under Section 50 to execute the decree against the legal representative and once that it is made, both els. (a) and (b) of Order 21, Rule 22, stand on the same footing and in both the cases if the conditions mentioned in Clause (2) are satisfied, the legislature can dispense with the notice. As pointed out in Rajagopala Aiy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Another assumption is when the law only prescribes the issue of a notice to them at the commencement of the execution proceedings, they cannot claim as a matter of right, to have a fresh notice if their representation of the deceased's estate commences during the progress of the carrying out of the processes of the Court''. This is again based on a misreading of Section 50 and Order 21, Rule 22. Their Lordships again proceed on a misunder standing of the scope of the decision in Malikarjun v. Narhari and Gopal Chunder Chatterjee v. Gunamani Dasi I.L.R.(1892) 20 Cal. 370. 57. I am therefore of opinion that Raghunathasami Aiyangar v. Gopaul Rao (1921)41MLJ547 and Kampineni Rajayya v. Kalapatapu Annapurnamma (1925) 50 M.L.J. 662 have been correctly decided and the sale in this case is void and the appeal fails and should be dismissed with costs. K.P. Lakshmana Rao, J. 58. This is an appeal by the auction-purchaser and the question for determination is whether the lower Court was right in holding that the sale was void. 59. The sale was held in execution of a simple money decree obtained by the sixth respondent against the undivided father of respondents 1 to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e decree-holder but to follow the procedure laid down in Section 50, namely, to execute the decree against the legal representative. This can be done either by an independent application or by impleading the legal representative in the pending execution petition, but as pointed out in Gopal Chunder Chatterjee v. Gunamoni Dasi I.L.R.(1892) 20 Cal. 370 which was approved by the Privy Council in Raghunath Das v. Sunder Das Khetri I.L.R.(1914) 20 Cal. 370 a notice under Section 248 of the old Code corresponding to Order 21, Rule 22 of the present Code, is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor. Clause 2, of Order 21, Rule 22, which under certain circumstances empowers the Court to issue any process in execution without issuing the prescribed notice, assumes the presence on record of some person against whom the process is to be issued and as observed in Rajagopala Aiyar v. Ramanujachariar I.L.R.(1923) 47 Mad. 288 : 46 M.L.J. 104 (F.B.)the only effect of this clause is to give the Court jurisdiction in certain cases which without it the Court would have none, The ..... X X X X Extracts X X X X X X X X Extracts X X X X
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