Gaya Din vs Mata Din and Others

Banerji and Tudball, JJ.—This appeal arises out of a suit brought by the plaintiff respondent for possession of a house, which was purchased

by his father Pancham at an auction sale on the 5th of March, 1904. The facts are these: A suit was brought by Banni Ram and Raja Ram against

four persons, namely, the defendants Mata Din, Ram Adhin, Ram Narain and Chitrakoti to recover money due on two hundis alleged 4o have

been executed in favour of those plaintiffs on behalf of a firm of which the defendants were members. Chitrakoti is a minor, and in the suit he was

described as represented by his father Ram Adhin as his guardian ad litem. The plain, tiffs filed an application supported by an affidavit praying that

Ram Adhin might be appointed guardian of the minor for the suit. Notice was issued to Ram Adhin to show cause, but he did not appear. The

Court, however, does not appear to have recorded a formal order appointing Ram Adhin as guardian ad litem of the minor, but summons was

issued to him as such guardian, and in a proceeding recorded on the date of the hearing he was described as guardian ad litem of the minor. The

defendants did not appear, and on the 9th of May 1903, an ex parte decree was passed. In execution of that decree the property of the joint

family, viz., the house now in dispute, was sold by auction on the 5th of March 1904, and was purchased by Pancham the deceased father of the

present plaintiff. On the 12th of October 1904, he obtained formal possession. It is alleged that he was subsequently dispossessed by the

defendants, who are now in possession. The defendants Mata Din, Ram Adhin and Ram Narain were prosecuted by Pancham, with the result that

they were punished. We may observe that after the auction sale an application to set it aside was made by the three adult defendants on the ground

of irregularity and on other grounds, but that application was rejected, and the sale was confirmed on the 21st of May, 1904. On the 7th of

February 1905, an application was made on behalf of the minor Chitrakoti to have the ex parte decree set aside, and on the 8th of July 1905, the

application was granted and the ex parte decree was set aside. On the 4th of August 1905 he applied to have the sale set aside on the ground that

he was not properly represented in the suit. The Court of first instance granted his application and set aside the sale, but on appeal the learned

District Judge reversed the order of the Court of first instance and on the 17th of April 1906, dismissed the application and affirmed the sale. The

suit of Banni Ram and Raja Ram was heard again, but it was not resisted, and on the 16th of January, 1906, an ex parte decree was again passed

against all the defendants.

As the defendants are still in possession of the house purchased by the father of the plaintiff, the plaintiff instituted the present suit for recovery of

possession. The claim was resisted on various grounds, the principal grounds being that the defendant Chitrakoti was not properly represented in

the suit, no guardian ad litem having been appointed by the Court; that the decree passed in the suit and the auction sale held in pursuance of the

decree Were therefore invalid and were not binding on the minor, and that nothing passed to the purchaser under the said auction sale.

The Court of first instance dismissed the plaintiff''s suit, but the lower appellate Court has decreed it. The learned Judge was of opinion that the

order of the 17th of April, 1906, to which we have referred above, is binding on the defendants and that they are not entitled to plead that the

auction sale was invalid.

The defendants have preferred this appeal. So far as the three adult defendants, namely, Mata Din, Ram Adhin and Ram Narain, are concerned

the appeal is wholly untenable. The decree of the 9bh of May 1903 was never set aside as against them. In pursuance of that decree the property

in question was sold by auction and the sale was confirmed as against them, their application to have it set aside being rejected. The sale is

therefore binding on them and on their interests in the property in question, and it is not open to them to resist the plaintiff''s claim.

It is the case of the minor defendant Chitrakoti which has raised some difficulty. It is said that the decision of the District Judge, dated the 17th

of April 1906, being a decision passed upon an application made by Chitrakoti under Sections 244 and 311 of the Code of Civil Procedure,

1882, he is bound by that decision, and cannot impeach the sale which was held to be valid. This contention would have considerable force if

Chitrakoti was properly represented in the suit in which the decree was passed and was thus a party to it. Unless he was a party to the suit he

could not prefer any objection u/s 244 or Section 311. The question therefore arises whether he was a party to the suit. But holding the view that

we do, we do not deem it necessary to, decide that question. Assuming that he was not properly represented in the suit and was therefore not a

party to it, is he entitled to claim that his interests in the property have not passed to the auction purchaser, unless he can establish that the debt for

which the property was sold was of such a nature as not to be binding on him, and as would not justify a sale of the whole of the family property

including his interests in it? It is contended on behalf of the plaintiff that if the debt was a debt for which the joint family was liable, the father of the

appellant Chitrakoti, or the managing member of the family of which ha and his father and uncles were members, was competent to sell the whole

of the family property and such sale would convey to the purchaser the interests of the minor also; consequently if the debt for which the auction

sale at which Pancham purchased was held was a debt binding on the family, the defendant Chitrakoti cannot resist the plaintiff''s claim simply on

the ground that he was not a party to the suit in which the decree obtained by Banni Ram and Raja Ram was passed. In our judgment this

contention is well founded. If the deb''t was.of such a nature that it was binding on all the members of the joint family, a sale in lieu of such a debt

would bind all the members and convey the interests of the minor also. The mere fact that a decree was passed for such a debt in a suit to which

the minor was not a party would not necessarily raise the inference that the debt was not binding on the minor. We have to see whether it was a

debt for which the minor was liable. In the present instance, as we have said above, after the ex parte decree of the 9th of May 1903 was set

aside, the case was reheard, but no defence was put in on behalf of Chitrakoti or any of the other defendants, and a decree was passed on the

16th of January 1906, declaring the debt to be one for which all the defendants, including Chitrakoti, were liable. As was held by the Full Bench in

Debi Singh v. Jia Ram ILR (1902) All 214 the Court in selling the property at auction does that which the judgment-debtor himself might or ought

to have done, and therefore after an auction sale the Bon of the judgment-debtor cannot avoid the operation of the sale upon his interests unless he

can prove that the debt was tainted with immorality, or was otherwise not binding on him. In our opinion the principle of the ruling in that case

applies to this case, In his judgment the learned Chief Justice observed as follows:

If the purchasers at the sale in execution had purchased the property from Jia Ram and not through the Court, it is clear that the appellants could

not upset the sale unless they were in a position to prove that the debt in respect of which the sale was effected was a debt tainted with immorality.

The Court has done only what Jia Ram could himself have done. Are the purchasers under a judicial sale to be in a worse position than that which

they would have occupied if they had purchased the property from Jia Ram? I think not.

In the present case if the father of Chitrakoti had sold the property in dispute for the amount of the decree obtained by Banni Ram and Raja

Ram, the appellant Chitrakoti could not have recovered his share of the property from the purchaser save by proving that the debt for which the

sale was effected was tainted with immorality and was not otherwise binding on him. The fact that an auction sale has taken place does not seem to

us to make any difference. We are also of opinion that the fact that Chitrakoti is not a plaintiff, but is a defendant in the suit, does not make any

difference. If he was not competent to bring a suit for the recovery of his own share in the property otherwise than by establishing that the debt was

not binding on him, he is not entitled to resist the claim of the purchaser save on the grounds mentioned above.

For these reasons we are of opinion that the decree of the Court below is a right decree and the plaintiff is entitled to recover possession of the

property purchased by his father. We dismiss the appeal with costs.