N. Lakshmi vs K. Raghava Reddy and Others

K. Ramaswamy, J.—This is an appeal filed against an order passe din a petition under O.XXI Rule 90 and S. 47 CPC dismissing the application to set aside the sale held on January 23,1983 in E.P.35/71 on the file of the Subordinate Judge, Kavali. An extent of Ac.5-00 of wet land was sold on January 23,1983. The appellant filed E.A. 14/86 to set aside the above sale. The facts not in dispute are that one D. Seetamma, Judgment-debtor No.6 is the owner of the petition schedule property. She died in 1971. Before her death she bequeathed by a will dated October 14,1969 this Act 5-00 of wet land to the appellant. This property is also one of the properties sought to be proceeded against. Consequent on the death of the deceased, an application E.A. 153/82 was filed under Sec. 50 C.P.C. to bring the appellant on record as a successor-in-interest of the deceased judgment-debtor. The appellant was brought on record without any notice to her and the property was sold January 23, 1983 at the rate of Rs.2,000/- per acre without any notice. Assailing the validity of the sale to held the appeal has been filed.

The contention Sri Suresh Kumar, learned counsel for the appellant is that by operation of Order XXI Rule 22 with Sec. 50(1) C.P.C. notice to the appellant is mandatory. No notice was issued and therefore the sale is void and the Court below erred in law in holding that the appellant''s father was representing all the judgment-debtors and the representation by him is sufficient compliance with Order 21 Rule 22 and Sec. 50(3) CPC. The finding is in the teeth of Order XXI Rule 22 and it is contrary to Sec. 50(1) C.P.C. I find force in the contention.

Sri Ramana Reddy, learned counsel for the respondents has resisted the above contention. He argued that it is the case of the appellant that she was a student prosecuting her studies elsewhere and her father was representing her in the legal proceedings. Therefore, though the court has given a finding that no notice was given, in view of the fact that her father had represented in the execution proceedings, that is sufficient compliance. Therefore, the finding recorded by the Court below is valid in law.

Section 50(1) of C.P.C. postulates that 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 representatives of the deceased. Order XXI Rule 22 provides that where an application for execution is made:

(a) more than two years after the date of the decree, or

(b) against the legal representative of a party to the decree or where an application is made for execution of a decree filed under the provisions of Section 44A, or

(c) against the assignee or receiver in insolvency, where the party to the decree has been adjudged to be an insolvent the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show-cause notice, on a date to be fixed, why the decree should not be executed against him. Order XXII Rule 10 provides procedure in case of assignment before final order in suit Rule 10(1) reads thus:

(1) In other cases of an assignment, creation of devaluation of any interest during the pendency of a suit, the suit may, by leave of the court be continued by or against the person to or upon whom such interest has come to devolved.

(Sub-rule 2 is not necessary. Hence omitted).

A reading of these provisions would clearly demonstrate that if an interest has been devolved by testamentary disposition upon third parties, then the proceedings in the suit may be continued with the leave of the Court, against a person by or upon whom such interest has come or devolved. Obviously, for this purpose since it is a testamentary, succession, an application has been filed under Sec. 50 (1) and under Rule 22 of Order XXI to proceed against the property which is the subject matter of devolution under the testamentary succession. When such is the situation as required under Order XXI Rule 22 and under Sec. 50(1), the notice to the appellant is mandatory and any sale held without notice to the person in whose favour the property has been devolved by testamentary succession is clearly void. It is one thing to say that the estate of the deceased is represented by one of the legal representatives who is impleaded in the proceedings and the property is sought to be sold. Yet another thing to say that the property is sought to be sold is held by third party by virtue of the devolution on the person under a bequest and the property so devolved by way of testamentary succession is being sold in execution. The question in the later case is whether it binds the appellant. If it were a case where the property is proceeded without taking into account the testamentary succession, perhaps the finding of the court below that one of the legal representatives could represent the estate may be justified. In this case the respondent decree holder specifically brought the appellant on record as successor in interest so as to bind the property obtained by the appellant by testamentary succession by a will executed by the judgment-debtor. Under those circumstances, the representation of the estate by the father of the appellant is not a material factor and it does not cure the voidity of the sale held without notice to the appellant. In Kanchamalai Pathar Vs. Ry. Shahaji Rajah Sahib (deceased) and Others, a Full Bench of five Judges by separate judgments have held that the language of Section 50 C.P.C. is permissive. But this does not mean that recourse to the section may not be obligatory. If a decree-holder does not desire to proceed with the execution after the judgment-debtor''s death or if there are other parties on recorded against whom the decree can be executed, there will be no occasion to have recourse to Section 50. But if execution of the decree is necessary against the legal representative of the deceased judgment-debtor the decree-holder has no option but to proceed u/s 50. He must apply to the Court to execute the decree against the legal representative and notice must issue to the legal representative as required by Order 21, Rule 22 C.P.C. Accordingly, it was held that the sale without notice is void. I am bound by the ratio of the Full Bench and the decision of the Full Bench is clearly in support of the view I have taken. Accordingly, I hold that the sale of the property which is the subject of this appeal, without notice to the appellant is void. The sale is accordingly set aside and the matter is remitted to the court below to proceed with the execution according to law and the court below is directed to complete the execution proceedings as expeditiously as possible.

The appeal is accordingly allowed. No costs.