Laldhari Prasad and Others vs Nilkanth Prasad Singh and Others

Wort, J.—This is an appeal by the decree holder against the decision of the Subordinate Judge in an application by the judgment-debtors to set aside a sale in execution of a mortgage decree. The objections taken in the Court below by the judgment-debtors were first, that as there had been a transfer of a 4 annas share of one Madho Bibi in the decree to the wives of some of the mortgagors, notice was required under Order 21, Rule 16 as the transferees had applied for execution together with the other decree-holder.

No such notice had been served; the notice required by Order 21, Rule 22 had not been served; the notice required by Rule 66 of the same order had not been served; the sale proclamations had not been served on the spot; the price obtained in the execution sale was inadequate; that certain of the judgment-debtors were dead at the time that the execution was taken out; that the heirs have not been brought on the record; and that as regards some of the judgment-debtors although they had in fact attained their majority were described in the execution proceedings as minors and had been proceeded against as such.

The Judge in the Court below decided the point as regards Order 21, Rule 16 in favour of the objectors and the second point under Order 21, Rule 22 against them. He also decided that notice under Order 21, Rule 66 had been served, that the proclamations had been served on the spot; that so far as the price obtained at the sale was concerned, the price of certain properties was inadequate. He also decided that certain judgment-debtors were dead and that their heirs had not been brought on the record, and that although certain persons who were majors were described and proceeded against as minors, yet this constituted merely an irregularity. But on the other points in which the objectors succeeded the learned Judge set aside the sale.

The only points which are contested by either side in this Court are those relating to Order 21, Rule 16, the question of the death of certain judgment-debtors and the point relating to the minority of the others. So far as regards the notice required by Order 21, Rule 16 in cases when the transferee of a decree applied for execution, one fact was not brought to the notice of the learned Subordinate Judge in the Court below. It appears that the transfer of the interest in the decree was made prior to the final decision in the mortgage action in the appeal to this Court, and that whilst that appeal was pending the transferees were made parties to the appeal.

The question therefore does not arise under Order 21, Rule 16 as they are not transferees of the decrees but are in fact decree-holders. There were eight judgment-debtors, who, it is alleged, were dead prior to the taking out of execution proceedings. As regards five of them, they were transferees of the mortgagors'' interest. As regards three others, being Harangi Singh, Banku Prasad and Harnath, respectively, defendants 12, 18 and 20, they were mortgagors.

Mr. Jha, who appeared on behalf of the appellants, contended in the first place that the evidence disclosed the fact that six of these eight persons were not dead but were living at the time that execution was taken out, and in support of this contention referred to a number of documents in the case, which, if taken at their face value disclose the position for which he contends. But the evidence is not altogether satisfactory on the point and indeed the matter becomes immaterial by reason of the main argument in the case upon which, in my judgment, he succeeds.

In the first place the argument proceeded on the assumption that all these eight persons were transferees, but, as I have already indicated, three of them are mortgagors. So far as the matter relates to the transferees, it is pointed out that although they were proper, they were not necessary, parties in the action and therefore not necessary parties in the execution proceedings, Sital Prasad v. Asho Singh AIR 1922 Pat 651, and if indeed their legal representatives were not brought on the record this omission constitutes a mere irregularity which cannot result in the sale being a nullity. One argument put forward by the respondent was that as they were the parties in the suit, the plaintiff choosing to join them although they may have been proper parties only, they became necessary parties to the execution proceedings as a result. In my judgment this argument is unsound.

The further argument by the learned advocate appearing on behalf of the respondents is based on the provisions of Section 50, Civil P.C., which provides for the legal representatives of the deceased judgment-debtor being proceeded against and it is sought to be argued that the word "may" is to be read as "shall" and authority was stated for that proposition. In one sense the word "may" is always used as "shall," but only in the sense that if the judgment-debtor is dead there is no person other than his legal representative against whom execution can be taken out, and an execution cannot proceed without a party. But the section in no way deals with the point at issue here.

Further it is impossible to hold that although an action could have been brought against the necessary parties, leaving out the parties who are merely proper parties, to which class these persons belonged, that execution could not proceed without their being added as parties.

It is contended that their not being joined resulted in the splitting up of the security. This argument cannot be supported and indeed it is argued on behalf of the appellant that as regards the transferees they were purchasers of certain specified lands and therefore the decree in that sense was separable. There is no clear evidence of this but it seems to me that the point is answered by the statement that these persons were not necessary parties.

It is said however that the case cannot be met in this way as regards Harangi and two other persons who wore actually mortgagors. As regards Harangi, the father is admittedly on the record and represents his son, and as the objector has given no evidence that there were representatives of Harangi other than the father, it seems to mo that there is no substance in the point. There is also some very considerable doubt whether Harangi was dead at the time as is stated. The evidence is contradictory. Against an order made u/s 47, Civil P.C., the father appealed and joined his son Harangi as respondent which would make it appear that he was alive. But it is unnecessary in my judgment to come to any definite decision on this point for the reason I have stated, namely, that Harangi in any event is represented.

As regards the other two mortgagors it is admitted by the objector''s witness 11 that their heirs are on the record, so no point arises in connexion with them.

As regards the other point, it was said that certain majors have been described as minors. These persons are Ishar Singh, Hari Singh alias Mahesri Prasad and Madho Prosad alias Bindeswari. We are concerned with Ishar Singh only as a correction was made as regards the other two in the Court below during the pendency of the case.

It seems that as regards Ishar Singh he was wrongly described; but in the case of Seshagiri Rao v. Jagannadham (1916) 89 Mad 1031 it was pointed out that it was the duty of the party himself when he attains majority to inform the Court to take necessary action. At the most it can be said with regard to this that it is a mere irregularity and does not result in the sale, as between the decree-holder and the present appellants the mortgagors being a nullity. The case of Sanyasi v. Lakhshman Naidu AIR 1928 Mad 294 is relied upon for the proposition that the sale was a nullity. That case is not in point. In the first instance it dealt with the question of a compromise decree effected by a guardian ad litem of a so called minor defendant, who had attained his majority, in which circumstances it was held that it was not binding on him; but it was further held that a decree passed on adjudication in similar circumstances was binding. It in no way touches the point in issue whether the sale was a nullity and certainly gives no assistance to the respondent in that regard.

The last point argued was on the basis of the finding of the Subordinate Judge in the Court below that as regards some of the properties the price fetched was inadequate. Order 21, Rule 90 relating to the setting aside of a sale on the ground of irregularity and fraud provides also that substantial injury, which is alleged in connexion with this point, must have resulted from such irregularity and fraud. It is impossible to suggest in this case that any of the irregularities which have taken place here can in any way be said to have resulted in the inadequate price which was obtained for some of the properties. In my judgment the decision of the learned Judge in the Court below was wrong and must be reversed and the appeal allowed with costs

Kulwant Sahay, J.

I agree.