Jaldu Manikyala Rao vs Meerza Gulam Raza

Kuppuswami Ayyar, J.—The appellant in the C.M.S.A. is the auction purchaser in the sale held in execution of the decree in O.S. No. 50

of 1926 on the file of the District Munsif''s Court of Masulipatam. He is also the petitioner in the connected C.R.P. and in both he disputes the

correctness of the order of the learned District Judge of Kistna in C. M. A. No. 18 of 1942 setting aside the sale in toto in favour of the petitioner.

They suit O.S. No. 50 of 1926 was filed by respondent 3 a creditor of one Raza Ali for recovery of money due to him. As Raza Ali was dead

when the suit was filed and the seven defendants were sued as his legal representatives! and a decree was passed against them, their liability being

limited to the assets of Raza Ali in their hands if any. Respondents 1 and 2 attached the decree obtained by respondent 3 in O.S. No. 50 of 1926

and brought to sale the properties which are the subject-matter of this appeal. During the course of the execution proceedings, defendant 7 in the

suit died on 10th January 1941. Evidently, the attaching creditors were not aware of it and the proceedings continued without the legal

representatives being brought on record with the result that on 14th July 1941, the properties were sold without the legal representatives of the

deceased defendant 7 on record. The petitioners claiming to be the legal representatives of the deceased defendant 7 filed the petition out of which

the appeal and the revision petition arise, for setting aside the sale on the ground that the sale was not valid and binding on them. The first Court

dismissed the petition and the learned District Judge, on appeal, allowed the petition and set aside the sale. It was also contended that the property

fetched a low price. The learned Judge found that the price was not adequate but set aside the sale on the ground that it was illegal and invalid as

the executing Court had no jurisdiction to sell the property in the absence of the legal representatives of defendant 7.

So far as the legal representatives of defendant 7 are concerned, it cannot be said that the sale could not be questioned. It was pointed out in

Kanchamalai v. Shahaji Rajah AIR 1936 Mad. 205 by a Full Bench of this Court that when the legal representative of a judgment-debtor is not on

record, the execution proceedings and the sale held in the same will be invalid. It is true in that case there was only one judgment-debtor while in

this case there were several judgment-debtors. The decree was obtained not against the deceased Raza Ali but as against defendants 1 to 7 though

their liability was limited to the extent of the assets in their hands. It is possible that execution of such a decree might be barred against some of

them and could be executed against others. It cannot, in these circumstances, be said that one of the defendants could represent the interests of the

other; for they are Mahomedan co-heirs and one of them cannot be said to represent the interests of the other. On the death of Raza Ali, the estate

vested in the seven legal representatives but they took as tenants in common. A number of authorities were cited for the appellant for the position

that where a decree is obtained against some of the legal representatives without impleading the rest, such & decree could be executed and the

sale held in execution of such decree could be valid and binding on those persons who were not made parties. On the strength of these rulings it

was stated that as in this case the other six defendants were parties to the execution proceedings, it must be considered that they sufficiently

represented the heirs of defendant 7 and consequently the sale could not be set aside. The rulings cited for the appellant are Khurshet Bibi v. Keso

Vinayak (1988) 12 Bom. 101, Davalava v. Bhimaji Dhondo (1996) 20 Bom. 338, M.L.M. Ramanathan Chettiar Vs. Ramanathan Chettiar and

Others, but then Khurshet Bibi v. Keso Vinayak (1988) 12 Bom. 101 and Davalava v. Bhimaji Dhondo (1996) 20 Bom. 338 are cases relating to

Mahomedan heirs"" and the correctness of those decisions was doubted in a later ruling of that Court in Mirkha Imamkha Vs. Bhagirathi Mahadev

Abhyankar, and it was pointed out that those decisions were arrived at by applying the principle of the Hindu law of representation to

Mahomedans, which was not accepted by the Bombay High Court. M.L.M. Ramanathan Chettiar Vs. Ramanathan Chettiar and Others, related to

a case of a joint Hindu family. In all these cases, the decision was based on the ground that the other persons sufficiently represented the interest of

the person who was not brought on record and they were all considered to be cases in which a decree or relief was granted as against a particular

estate. In this case, it is as against seven individuals the decree has been obtained, and one cannot be said to represent the interests of the other. In

Khadersa Hajee v. P. Ayissa Ummah (1911) 34 Mad. 511 and Abdul Majeeth v. Krishnamachariar AIR l918 Mad. 1049 it was pointed out that

in the case of Mahomedan co-heirs, one cannot represent the interests of the other. Though in Khiarajmal v. Daim (1905) 32 Cal. 296 it was

found that the party who was not on record was sufficiently represented yet their Lordships also observed that the Court will have no jurisdiction

to sell the property of persons who were not parties to the proceedings or who were not properly represented on record. In this case, in view of

the fact that it cannot be said that the other six defendants can be said to represent the interests of defendant 7 or her heirs, the sale will not be

valid so far as they are concerned.

The learned Judge has set aside the sale not only with regard to the petitioners but also with regard to the other defendants. There was no

justification for it. The other defendants were all parties to the proceeding and they did not file any petition to set aside the sale. If their interests are

distinct and different from the interests of defendant 7 (and it is only on that basis it has been contended that they cannot be said to represent the

interests of defendant 7) how could it be said that the failure to implead the heirs of defendant 7 would invalidate the sale so far they were

concerned? In Official Receiver, Nellore v. Venkiah AIR 1941 Mad. 606 this Court found that certain of the judgment-debtors were not properly

represented in the execution proceedings and holding that hence the sale so far as they were concerned was without jurisdiction confirmed the sale

as against those persons who had been properly represented in the suit. The sale was set aside only as against those persons whom this Court

found were not properly represented in the proceedings. In (Chavali) Ramakrishnayya Vs. (Yeleswarapu) Soorayanarayana Sarma, it was pointed

out the sale would be invalid only with regard to the legal representatives of the deceased judgment-debtor who were not served with the requisite

notice under Order 21, Rule 22 and that the sale will not be void in its entirety. The Calcutta High Court also in Manindra Chandra Nandi Vs.

Rahatannessa Bibi and Others, which was followed in Anil Kumar Roy Chaudhury and Others Vs. Ahammed Ali Sarkar and Others, has held that

the sale could be set aside only as against those persons to whom notice under Order 21, Rule 22 has not gone. In the result, the order of the

learned District Judge setting aside the sale in toto is set aside and instead, the sale so far as the petitioners in E.A. No. 1677 of 1941 who are the

legal representatives of the deceased defendant 7 are concerned, is set aside. Parties will receive and pay proportionate costs in all the three

Courts. There will be one set of advocate''s fee.