K. Swaminatha Iyer and Another vs K.G. Krishnaswami Iyer and Others

Patanjali Sastri, J.—These connected appeals, though arising out of two suits tried separately by different Subordinate Judges, are aimed at

securing the same relief to the appellants-plaintiffs, viz., a declaration that a Court-sale held in execution of a decree obtained against their father is

not binding on their shares in the property sold. The plaintiffs and their father are admittedly members of a joint Hindu family. The father and his

brother since deceased borrowed Rs. 2,500 from the Madras People''s Bank, Ltd., (in liquidation), executing a promissory note dated 19th

January, 1938. The bank sued for recovery of the amount due and obtained a decree against the executants. The plaintiffs were not made parties

to the suit. In execution of the decree the house now in question which admittedly belongs to the joint family Was attached on 21st June, 1939, and

on the following day the Court struck off the execution proceedings ordering however, that the attachment was to subsist for four months. Within

that period the bank filed afresh execution petition on 16th October, 1939, and, after sundry procedure consequent on the bank going into

liquidation and the Official Liquidator being brought on record, the attached property was brought to sale on 23rd March, 1942, and was

purchased by one Sundararaja Pillai. The sale was confirmed on 26th June, 1942, and delivery of possession was ordered on 29th March, 1943.

Thereupon the plaintiffs instituted the two suits out of which these appeals arise, O.S. No. 89 of 1942, in the Subordinate Judge''s Court, Madura,

for partition and delivery of their shares in the family properties including the house now in question the sale of which they impeached as not binding

on their shares, and O.S. No. 33 of 1944 in the same Court for setting aside the order for delivery referred to above and maintaining their

possession of the house. The Court below upheld the sale in its entirety, and refused the relief sought by the plaintiffs in respect of the house.

Hence the appeals.

The plaintiffs attacked the validity of the Court-sale on various grounds in the Court below, but Mr. Sitarama Rao appearing for the appellants

pressed only two of them before us; firstly, the suit brought by the bank against the father having been based only on the promissory note and not

also on the debt, and the plaintiffs not having been impleaded, the decree therein must be taken to have been passed personally against the father in

his individual capacity and not as representing the other members of the family and that in execution of such a decree the father''s share alone in the

property brought to sale can be deemed to have passed to the purchaser; and, secondly, inasmuch as the attachment was ordered to continue in

force only for four months but the property was sold long after the expiry of the period, the sale was void as a subsisting attachment was an

essential pre-requisite for a valid execution sale where the decree itself did not order a sale.

On the first point, our attention was called to the plaint in the bank''s suit to show that it was based solely on the promissory note of the father

and not also upon the consideration, and it was urged that a decree obtained against the father alone in a suit framed in that form was not binding

on the sons'' shares in the family properties even under the pious obligation rule. It was not suggested that the decree represented an avyavaharika

debt or that the father did not receive consideration for the note; but it was said that, having regard to the frame of the suit, the decree was not a

debt to which the pious obligation of the sons under the Hindu Law could be extended. No authority was cited in support of this somewhat novel

contention. It is true that no one could be made liable on a negotiable instrument unless his name clearly appears as the name of the person liable

thereon (Sadasuk Jankidas v. Sir Kishen Prasad (1918) 36 M.L.J. 429 : L.R. 46 LA. 33: ILR 46 Cal.663 and it is also true that a distinction has

to be made for some purposes between liability on the instrument and liability for the consideration thereof as, for instance, in the case of an

indorsee who is limited only to his remedy on the note (Vide Maruthamuthu Naicker v. Kadir Badsha Rowther (1938) 1 M.L.T. 378 : ILR 1938

Mad. 568 or for the purpose of applying the presumption u/s 118 of the Negotiable Instruments Act (Vide Anumolu Narayana Rao and Another

by their mother and guardian Anumolu Ramadevamma Vs. Ghattaraju Venkatappayya and Others, . The distinction also becomes relevant where

the representative capacity of the executant as the manager of the family comes into question. It has been held that where a suit is instituted on a

promissory note, it is prima facie a personal claim and the defendant alone is liable to satisfy the decree unless it directs that it is to be paid out of

family, property, although the debt was in fact incurred for family necessity Chippagiri Nagireddi Vs. Venkadari Somappa, . But the distinction can

have no meaning where the suit is brought by the payee against the maker and the decree is sought to be enforced against the judgment debtor''s

son to the extent of his interest in the family property. For, it is not by reason of the father having represented the son in the suit that the son''s

interest is bound and passes at the execution sale but by reason of his pious obligation to pay his father''s personal debt and the correlative power

of the latter to sell family property including the son''s share for the discharge of such debts, a power which the Court in execution exercises for the

benefit of the judgment-creditor. This was recognised in the last mentioned case where the Court emphasised that it was not concerned with the

application of the pious obligation rule in execution proceedings because the manager of the family there was not the father. It is not the form of the

decree or the frame of the suit but the nature of the debt that determines the son''s liability. Jf.it is neither illegal nor immoral, then all that the son

can claim for the protection of his interest is an opportunity to show that the debt for which the decree was passed was not binding on him. As the

plaintiffs have had such opportunity in these proceedings but have failed to prove that the debt due to the panic was not binding on them, they

cannot claim that the sale of the suit house is invalid as against them. In (1888) L.R. 16 I.A. 1 (Privy Council) the Privy Council upheld a sale of

family property including the son''s share in execution of a decree obtained against the father by a bona fide holder of a promissory note when the

son failed to show that the debt was in its inception illegal or immoral, though the point was not specifically raised, the respondent (son) being

unrepresented.

As regards the second contention that the Court had no jurisdiction to sell the house as the attachment had ceased, it is to be observed, that this

Court has held in a series of cases that a sale of immovable property without previous attachment is not null and void and that the omission to

attach before the sale is only an irregularity which renders the sale liable to be set aside if substantial injury is proved. Ramaswami Naick v.

Ramaswami Chetti (1907) 17 M.L.J. 201 : I.L.R, 30 Mad. 255 Velayudhan Muppan v. Subramania Chetti (1912) 24 M.L.J. 70 Sivakolanda

Pillai v. Ganapathi Iyer 1917 M.W.N. 89. Mr. Sitarama Rao, however urged that these decisions could not be regarded as good law in view of

the decision of the Privy Council in Thakur Barhma v. Jiban Ram Marwari (1913) 26 M.L.J. 89 : L.R. 41 IndAp 38 : ILR 41 Cal. 590 . Though

the case in Sivakolanda Pillai v. Ganapati Iyer 1917 M.W.N. 89 was decided after the Privy Council decision referred to above, no reference to it

is made in the judgment. The question again arose in Subramania Iyer v. Krishna Iyer (1925) 51 M.L.J. 172 and Madhavan Nair, J., (as he then

was) considered the effect of the Privy Council ruling and expressed the view that it did not affect the authority of the previous decisions, but the

other learned Judge Spencer, J., decided the case on another point. We have therefore to see whether the proposition contended for by Mr.

Sitarama Rao is deducible from the decision of their Lordships. There the decree-holder, applied for attachment and sale of a six annas share of a

certain village belonging to the judgment-debtor, describing it as subject to a mortgage. The property thus described was attached and sold in

public auction in due course. The purchaser, however, claimed that by mistake the property to be sold had been described as subject to

encumbrance while it was really intended to sell six annas out of the unencumbered ten annas, and that a certificate should be granted correcting

the alleged mistake and this was done. Their Lordships set aside that certificate, holding that it was not a case of mere misdescription of the

property sold but of ordering the sale of one property accurately described and selling a different property, which was beyond the powers of the

Court. It was in that context that Lord Moulton delivering the judgment of the Board observed :

Their Lordships are of opinion that this is a very plain case. That which is sold in a judicial sale of this kind can be nothing but the property

attached, and that property is conclusively described in and by the schedule to which the attachment refers. In the present case that property was

six annas subject to an existing mortgage. The effect of the certificate of sale granted by the order of the Subordinate judge is to make the sale that

of a property not attached, namely, the six unencumbered annas--a property which could not be sold in such proceedings inasmuch as it was not

the property attached.

These observations are relied on as authority for the proposition that the Court has no jurisdiction to sell property which is not under attachment

and a sale without previous attachment is void. As we read the judgment, however, it affords no support to that proposition. All that was decided

was that the Court had no power to sell any property other than the one attached and proclaimed for sale to the public. The key-note of the

judgment is contained in the sentence :

They (decree-holders) could not turn an authority to sell one property into an authority to sell another and a different one.

The attachment was brought in merely to emphasise that the property sold was different from the one offered in sale. We do not think that the

decision implies that a subsisting attachment is an essential condition of a valid judicial sale in the sense that without it the sale would be a nullity.

On the other side, Mr. Ramaswami Iyer for respondent contended that attachment was only a measure of protection for the decree-holder and

the execution purchaser and had nothing to do with the jurisdiction of the Court to sell the judgment-debtor''s property on application by the

decree-holder, and that a sale without attachment was perfectly valid. Learned Counsel relied on Namdevkrishna v. Goverdhan Nanabhai ILR

(1939) Bom. 420 where Beaumont, C.J., delivering the judgment of the Court expressed the view that Order 21, Rules 30 and 64 should not be

so construed as to limit the power of the Court u/s 51(b) to sell without attachment. In view, however, of the decisions of this Court to which we

have already referred and which are binding on us we cannot accept this extreme contention of Mr. Ramaswami Iyer. The position therefore is this

: Attachment is a necessary preliminary to a judicial sale, but a sale without attachment is not a nullity. Omission to attach is a material irregularity

which renders the sale liable to be set aside under Order 21, Rule 90, if substantial injury is proved.

Are the plaintiffs then entitled to avoid the sale to Sundararaja Pillai so far as their shares are concerned ? Their father, the first defendant, failed

to take any steps to have the sale set aside under Order 21, Rule 90, on account of the irregularity, presumably because no substantial injury had

resulted. Nor did they avail themselves of that remedy which was open to them also as persons "" whose interests are affected by the sale"". (See

Bubaneshwar Prasad Narayan Singh v. Biharilal I.L.R.(1935)Pat. 436. Even in the present proceedings they have not attempted to prove any

substantial injury by reason of the attachment having ceased to be in force at the time of the order for sale.

If omission to attach does not affect the jurisdiction of the Court to sell and is a mere irregularity, the purchaser''s title cannot, as it seems to us,

be displaced by any antecedent irregularity in publishing or conducting the sale except by resort to the statutory remedy provided by Order 21,

Rule 90. That remedy not having been availed of, the purchaser''s title has become unassailable and the appeals must fail. The respondents will

have their costs in the appeal. One advocate''s fee.