Ventaperumal Nadar v. Parvathi Nadachy — 1951 DIGILAW 115 (KER)

Judgment :- 1. The plaintiff in O.S. No. 562 if 1118 of the District Munsiff's Court of Nagercoil is the appellant in this case. The suit is for a declaration that the decree and execution proceedings in O.S. No. 2038 of 1104 of the District Munsiff's Court of Nagercoil are void and for setting aside the same and for a permanent injunction restraining the 1st defendant from recovering possession of the plaint property on the basis of the court sale in that case. The plaintiff's adoptive father had executed two hypothecation bonds in favour of the father of defendants 2 and 3. After the death of the hypothecator the father of defendants 2 and 3 filed O.S. No. 2038 of 1104 on the basis of the hypothecation bonds against the present plaintiff and the widow of the hypothecator. The present plaintiff who was a minor was at first represented by his mother as guardian for the suit. Although a written statement was filed by her on behalf of the minor nothing further was done in the case and the suit was decreed exparte. 2. As per Ext. A adoption deed dated 3.1.1102 the natural father of the minor was to be his legal guardian after death of the adoptive father. The natural father who is the 5th defendant in this case filed a petition to set aside the exparte decree and to have him appointed as guardian for the suit of the minor. The exparte decree was set aside and the natural father was appointed guardian for the suit of the minor on 15.10.1105. He filed a fresh written statement but the suit was again decreed on 17.11.1105. When the decree was prepared, by mistake the mother of the minor was stated to be his guardian. In the execution application that was filed by the decree-holder the minor was represented by his mother and therefore the notices relating to the execution were issued to the mother. When the property was brought to sale the present 5th defendant put in a petition on 16.4.1107 contending that he was the legal guardian of the minor defendant and praying that the decree-holder should be directed to correct the decree and that he might be given six month's time in order to raise the decree amount by mortgaging the decree schedule property with the leave of the court after getting the decree corrected. The decree-holder agreed to the sale being adjourned for three months and it was accordingly adjourned to 15.7.1107. On that day the 5th defendant filed another petition for further adjournment of the sale for three months, alleging that he had put in a petition to correct the decree, that the petition was posted for hearing on 20.7.1107 and that he could act on behalf of the minor only after the decree was corrected. This petition was rejected by the court and the sale was held on the same day. The decree-holder purchased the property for the decree amount. From the order passed on 15.7.1107 an appeal was filed in the District court by the 5th defendant and that also was dismissed. When the decree-holder applied for delivery of possession of the property the 5th defendant raised objections on behalf of the minor and they also were rejected. The appeal filed from the order rejecting those objections was also dismissed. Then the present suit was filed by the plaintiff for the reliefs mentioned above. 3. The main allegations in the plaint are that the amounts under the two hypothecation bonds executed by the plaintiff's adoptive father had really been discharged, that there was negligence on the part of the 5th defendant in the conduct of the case, that the decree is invalid and that in any case the execution proceedings are void since the plaintiff was not represented in those proceedings. The 1st defendant in his written statement denied all these allegations and contended that the decree and execution proceedings in O.S. No. 2038 of 1104 are valid and binding on the present plaintiff. The 5th defendant filed a written statement supporting the plaintiff. The trial court held that there was no negligence on the part of the 5th defendant in the conduct of the case on behalf of the present plaintiff in O.S. No. 2038 of 1104, that the plaintiff was properly represented in the execution proceedings in that case and that the decree and auction sale are valid. The suit was therefore dismissed with costs. 4. In this appeal the only point that was argued by the learned Advocate for the appellant was that the auction sale in O.S. No. 2038 of 1104 is void since the present plaintiff was not properly represented in the execution proceedings. The suit was therefore dismissed with costs. 4. In this appeal the only point that was argued by the learned Advocate for the appellant was that the auction sale in O.S. No. 2038 of 1104 is void since the present plaintiff was not properly represented in the execution proceedings. Although in the appeal memorandum the finding of the lower court relating to the validity of the decree in O.S. No. 2038 of 1104 is also objected to, the learned Advocate did not press that point. There is nothing to show that there was any negligence on the part of the present 5th defendant in the conduct of the case on behalf of the minor. The plaintiff has not been able to prove in this case that the amounts under the two hypothecation bonds have been discharged. In the circumstances there is no reason to hold that there was any negligence on the part of the 5th defendant in defending the suit on behalf of the present plaintiff. The only question to be decided in this appeal is whether the court sale in O.S. No. 2038 of 1104 is void and not binding on the plaintiff. It is not disputed that the mother of the plaintiff who was appointed guardian at first was removed from guardianship and that the 5th defendant was appointed guardian in her place. Therefore the only person who could represent the minor in the suit and in the execution proceedings was the 5th defendant. 5. O.32 R.3 Sub-r. 5 C.P.C. provides that a person appointed as guardian for the suit of a minor shall, unless his appointment has terminated by retirement, removal or death, continue as such throughout all proceedings arising out of the suit including proceedings in any appellate or revisional court and in proceedings in the execution of the decree. Although this provision was introduced in the Travancore C.P.C. only by the amendment of 1120 it has been the law in Travancore that the guardian appointed for a minor in a suit continues to be the guardian of the minor for purposes of execution also. Although this provision was introduced in the Travancore C.P.C. only by the amendment of 1120 it has been the law in Travancore that the guardian appointed for a minor in a suit continues to be the guardian of the minor for purposes of execution also. Sub-r. 5 before it was amended in 1120 read thus: "When the enforcement of a decree is applied for against the heir or representative being a minor, of a deceased party a guardian for the suit of such minor, shall be appointed by the court and the decree-holder shall serve on such guardian notice of such application". This provision implies that in the case of a minor who is a party to the suit and for whom a guardian for the suit has been appointed it is not necessary to appoint a fresh guardian in execution. It is true that there was difference of opinion among the Indian High Courts on the question as to whether under the Civil Procedure Code before it was amended in 1937 a guardian for the suit appointed on the trial side would continue as the guardian of the minor for purposes of execution also. But in view of the above provision in the Travancore C.P.C. there can be no doubt that even before the amendment of 1120 a guardian for the suit of a minor defendant would continue to be the guardian of the minor for purposes of execution also. Such being the case it cannot be denied that the 5th defendant alone could represent the present plaintiff in the execution proceedings in O.S. No. 2038 of 1104. In the execution application filed by the decree-holder the minor was represented by his mother who was not competent to represent him and all notices relating to the execution were served on her. It has therefore to be taken that the minor was not represented in the execution proceedings. These proceedings cannot therefore bind the plaintiff. 6. It was argued for the respondent that the plaintiff was substantially represented in the execution proceedings since the 5th defendant, his legal guardian, appeared in the execution proceedings and filed petitions on his behalf. It has therefore to be taken that the minor was not represented in the execution proceedings. These proceedings cannot therefore bind the plaintiff. 6. It was argued for the respondent that the plaintiff was substantially represented in the execution proceedings since the 5th defendant, his legal guardian, appeared in the execution proceedings and filed petitions on his behalf. But what the 5th defendant actually did before the sale was held was to bring to the notice of the execution court and to the decree-holder that he was the legal guardian of the minor, that the minor was wrongly represented in the execution proceedings by his mother, that the mistake in the decree with regard to the name of the guardian should be corrected and that unless the decree was corrected he could not act on behalf of the minor and raise money for discharging the decree-debt by mortgaging the decree schedule property with the permission of the court. He therefore at first prayed for six months' time for getting the decree corrected. It was for the decree-holder to take steps to correct the decree and to have the minor properly represented in the execution proceedings. The decree-holder did not choose to do so. In the second petition that was filed by the 5th defendant he stated that he had already filed a petition to get the decree corrected and that that petition was posted to a particular date. He therefore prayed for the adjournment of the sale for a further period of three months. That petition was opposed by the decree-holder and was rejected. In the circumstances it cannot be said that the 5th defendant raised any contention on behalf of the minor in the execution proceedings. What he really wanted was to get himself clothed with authority to act on behalf of the minor in the execution proceedings. It cannot therefore be said that the minor was substantially represented in the execution proceedings. 7. The next question for consideration is what the effect of the court sale is so far as the minor is concerned. According to the learned Advocate for the appellant the sale is null and void and would not affect the rights of the minor in the property. The widow of the deceased hypothecator had no right in the property sold and she could not represent the estate of the deceased. According to the learned Advocate for the appellant the sale is null and void and would not affect the rights of the minor in the property. The widow of the deceased hypothecator had no right in the property sold and she could not represent the estate of the deceased. According to the learned Advocate for the respondent the sale is not void but is only voidable and since the suit was not instituted within one year from the date of confirmation of the sale it is barred by limitation. The sale took place on 15.7.1107 and was confirmed on 27.9.1107. According to the allegation in the plaint the plaintiff came of age on 7.9.1116. This suit was instituted on 26.6.1118. It is therefore argued that the suit is barred under Art. 9 of the Travancore Limitation Act. The learned Advocate for the appellant argues that it is not necessary to set aside the sale as it is null and void that the prayer in the plaint for setting aside the sale is superfluous that the real relief claimed in the suit is one for a declaration that the sale is null and void and for an injunction restraining the 1st defendant from recovering possession of the property from the plaintiff, and that the period of limitation for such a suit is three years prescribed by Art. 165 of the Travancore Limitation Act (corresponding to Art. 181 of the Indian Limitation Act) and not Art. 9 (Art. 12 of the Indian Limitation Act.) The learned Advocate for the appellant relied on the rulings reported in 1948 Patna 91 and 1940 Patna 62 for the position that the sale in this case is void and not merely voidable. 8. In 1948 Patna (Shiva Sahai v. Sundar Mandal) it was held that a sale held without notice of the execution proceedings to the legal guardian of the minor is void so far as the minor is concerned. In that case a money decree was obtained against three brothers two of them were minors. The minors were represented by a pleader guardian ad litem appointed in the suit. When the decree was sought to be executed the minors were described as represented by their elder brother as guardian without any steps being taken to discharge the pleader guardian ad litem appointed in the suit. The minors were represented by a pleader guardian ad litem appointed in the suit. When the decree was sought to be executed the minors were described as represented by their elder brother as guardian without any steps being taken to discharge the pleader guardian ad litem appointed in the suit. The judgment-debtors' property was sold in execution and was purchased by the decree-holder. It was held that the elder brother had no authority to represent his minor brothers in execution as there was no order of the court removing the pleader guardian and appointing him as guardian in his place. Hence it was held that the provision as to notice under 0.21 R. 22 was not complied with so far as the minors were concerned and that therefore the court had no jurisdiction to sell the minors' share of the property. In a suit instituted for declaration that the interest of the minors was not affected by the sale it was held that the sale was void so far as the minors' share was concerned. Their Lordships followed a similar decision of the Patna High Court reported in 1940 Patna 62 (Bachoo Prasad Singh v. Gobardhana Das) in which case execution was sought against the minors describing them as under the guardianship of a person other than the guardian ad litem appointed by the court and notice under 0.21 R. 22 was served on that person. It was held that the sale was void so far as the minors' share of the property was concerned. 9. The learned Advocate for the respondent on the other hand relied on the rulings reported in 25 Bombay 337 and 1928 Patna 372 in support of his position that the sale held in such circumstances would not be void. In 25 Bombay 337 (Malkarjun v. Narhari) after the death of the judgment-debtor the decree was executed against his estate. Notice under 0.21 R. 22 was served upon a person who was not the legal representative of the deceased. But the execution court decided erroneously that he was the legal representative. Their Lordships of the Privy Council held that notices having been served under 0.21 R. 22 though upon a wrong person the court had jurisdiction to sell the property and that the sale was not void but only voidable. But the execution court decided erroneously that he was the legal representative. Their Lordships of the Privy Council held that notices having been served under 0.21 R. 22 though upon a wrong person the court had jurisdiction to sell the property and that the sale was not void but only voidable. It was observed by Their Lordships that the execution court had applied its mind to the question as to who was the legal representative of the deceased judgment-debtor and had come to a decision on the matter and had afterwards proceeded with the execution. In the circumstances it was held that although the decision was wrong the court had jurisdiction to decide wrong as well as right and that therefore it could not be said that the court acted without jurisdiction in conducting the sale with the wrong person as the legal representative and that the remedy of the aggrieved party was to seek to set aside the sale in appropriate proceedings. But in the present case the court had not applied its mind to the question as to who was the legal guardian of the minor defendant and had not come to a decision on the matter. We do not therefore think that the decision in 25 Bombay 337 applies to the facts of this case. 10. This decision was followed in 1938 Patna 372 (Sarju v. Bhagwat Prasad Singh). In that case after the death of one of the judgment debtors the mother of his minor son who was impleaded in execution was appointed guardian of the minor. But notice under 0.21 R. 22 was issued not to the mother but to one of the other judgment-debtors who was described as the guardian of the minor. Subsequently a property that belonged to the judgment debtors was attached in execution. It was held that though notice under 0.21 R.22 was not issued to the proper guardian the order of attachment could not be said to be without jurisdiction. In that case the only question that arose for consideration was whether the order of attachment amounted to a revival of the execution application and whether the subsequent execution application was therefore not time barred. It was held that the order of attachment amounted to a revival. The question whether the auction sale held under such circumstances would be void or not was not considered in that case. 11. It was held that the order of attachment amounted to a revival. The question whether the auction sale held under such circumstances would be void or not was not considered in that case. 11. I view of the fact that the minor was not properly represented in the execution proceedings in this case we are inclined to hold that the sale cannot affect the interests of the minor and that it is void so far as the minor is concerned. It was argued for the respondent that so long as the decree in O.S. No. 2038 of 1104 is found to be valid and binding on the present plaintiff who was a party to it, he can object to the validity of the sale only in execution and not by a separate suit as provided in S.47 of the Indian C.P.C. corresponding the S.40 of the Travancore Civil Procedure Code and that therefore this suit is not maintainable. Reference was made to the ruling in 1941 Lahore 327 (Firm Annu Mal v. Brij Lal). It was a case in which a suit was instituted on behalf of a minor for setting aside a court sale on the ground that the minor was not properly represented in the execution proceedings. It was held that it was a matter relating to the execution of the decree, that it would come under S.47 and that therefore a separate suit was not maintainable. But under sub-s. 2 of S.47 the court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under that section as a suit or a suit as a proceeding under that section. The present suit, so far as it impeaches the validity of the court sale, can therefore be treated as a proceeding under S.47 C.P.C. If the plaintiff's claim for this relief is not barred by limitation we do not find any reason why this suit should not be treated as a proceeding under S.47. 12. The next question for consideration is what Article of the Limitation Act will apply to this case if it is treated as a proceeding under S. 47 C.P.C. for relief on the ground that the court sale is void. 12. The next question for consideration is what Article of the Limitation Act will apply to this case if it is treated as a proceeding under S. 47 C.P.C. for relief on the ground that the court sale is void. It has been held in various cases that except in case of an application under 0.21 R. 90 of the Indian Civil Procedure Code for setting aside a court sale on the ground of material irregularity or fraud in publishing or conducting it in which case Art. 166 (corresponding to Art. 151 of the Travancore Limitation Act) would apply, it is Art. 181 (corresponding to Art. 165 of the Travancore Limitation Act) that applies to applications for relief on the ground that the court sale is void. Reference may be made to the rulings reported in 1924 Madras 431 (F.B.) (Rajagopala Iyer v. Ramanujacharier);1941 Lahore 327 (Firm Annu Mal v. Brij Lal); 1932 Cal. 381 (Surja Kanta Das v. Jogundra Nath Dutta); 1934 All. 314 (Narotam Das v. Bhagwan Dass); 1936 Pat. 496 (Ramanand Lanpat Rai v. Rakhal Mandal); 1950 Mad. 367 (Etta Naickar v. Ayyammal). 1924 Madras 431 (F.B.) (Rajagopala Iyer v. Ramanujacharier); is a case in which notice under 0.21 R.22 C.P.C. was not issued. It was held in that case that an application by the judgment debtor for relief on the ground that the sale was void would come under S.47 C.P.C. and that the period of limitation for such an application is three years under Art.181 of the Limitation Act. Following the decision of the Privy Council in 32 Cal. 296 Khiarajmal v. Daim, Their Lordships held that it was not necessary to apply to the court to set aside the sale in such a case. In 32 Cal. 296 the Privy Council laid down the law thus: "The Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be found in the judgment of Sir Barnes Peacock in Kishen Chander Ghose v. Ashoorum (1863) 1 Marsh. 647". As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions it may be found in the judgment of Sir Barnes Peacock in Kishen Chander Ghose v. Ashoorum (1863) 1 Marsh. 647". Following this ruling Schawbe, C.J. observed thus: "If it is possible for the petitioner in this case to proceed without applying to set aside the sale, he could avoid the harsh limitation imposed by Art. 166. In my judgment he could do so. He could, but for the provisions of S.47 of the C.P.C. of 1908 bring a suit for possession of the property sold and the purchaser would not be able to rely upon the court sale as a defence, because that sale is a nullity, and the Privy Council has held that it is not necessary to take any steps to set it aside. By reason of S.47, all questions arising between parties to the suit relating to execution ought to be determined by the court executing the decree and not by a separate suit, and it has been held that the fact that a court purchaser is a necessary party would not prevent the application of this rule. But this is only a question of procedure and the court may treat the proceedings under this section as a suit subject to any objection as to limitation. It is unnecessary to consider whether the effect of this is that the period of limitation to be applied is the period provided by the Limitation Act in respect of applications or that provided in respect of suits. If the former, the period of limitation will be three years under Art. 181, and if the latter the 12 years provided in the case of suits to recover possession of immovable property. I cannot agree with the view that all applications under S. 47 are governed by Art.166, nor do I think that the statements in cases to that fact are more than obiter dicta, the intention being to express the view, with which I agree, that if an application is an application to set aside a sale in execution of a decree it matters not whether the application is made under S.47 or under 0.21 R.90 (Seshagiri Rao v. Srinivasa Rao) 43 Mad. 313 is a direct authority for the proposition that when a sale is absolutely void for want of jurisdiction the article applicable is Art. 181". 1932 Cal. 381 (Surajkanta Das v. Jogendranath Dutta) was a case in which notice under O.21 R.22 C.P.C. was not served on the judgment-debtor. It was held that an application for relief on the ground that the sale was void should be treated as one under S.47 C.P.C. and that the period of limitation would be three years from the date of the sale. 1934 All. 314 (Narotam Das v. Bhagwan Dass) was a case in which the judgment debtor sought to set aside a sale on the ground that it was void. Their Lordships observed thus in that case:- "If a party wants a sale to be set aside for any of the reasons under R.90, 0.21 then the application must be made within 30 days as enacted by Art. 166 of the Limitation Act; but where a void sale is sought to be set aside then the application would not be under R.90 0.21 C.P.C. but will be deemed to be an application made in execution governed by S. 47 C.P.C. and to which Art.181, Limitation Act, would be applicable". In 1936 Patna 496 (Ramanand Ganapat Rai v. Rakhal Mandal) it was held that a sale which is void does not require to be set aside and that the period of limitation applicable to an objection to the sale is that given in Art. 181. In 1950 Mad. 367 (Etta Naicker v. Ayyammal) the sale was conducted without proclamation under 0.21 R. 66. It was held that the sale was invalid, that an application to set it aside would come under S.47 C.P.C. and that the period of limitation is that prescribed by Art. 181 namely three years from the time when the right to apply accrues. 13. The learned Advocate for the respondent relied on the rulings reported in 10 T.L.J. 299 (Chummaru v. Mani), 24 T.L.J. 734 (Parvathi v. Parameswaran), 1949 T.L.R. 14 (F.B.) (Bhagavathi Pillai v. Srikantan Nair) and 1949 T.C.L.R.141 (Nilakantan Tampi v. Kunjukrishna Pillai) in support of the position that a suit for setting aside a court sale even in cases in which the sale is void should be brought within one year under Art.9 of the Travancore Limitation Act. According to that Article a suit to set aside a sale in execution of a decree of a Civil Court by whomsoever brought on any ground other than that the judgment debtor or his family or tarwad had no right title and interest in the property sold should be instituted within one year from the date of confirmation of the sale. On the basis of the comprehensive language employed in the Article it was held in the above cases that a suit to set aside a court sale on any ground other than that mentioned in the Article should be brought within one year from the date of the confirmation of the sale. But it was not held in those cases that the court sales which were impeached were void. In 10 TLJ 299 it was held that the sale was not void but only voidable. It is true that it was observed in those cases that when a court sale has once taken place a party cannot ignore it and claim relief without seeking to set it aside within the period of one year prescribed by Art. 9 of the Travancore Limitation Act. But in none of these cases was the question raised whether a suit instituted by a party to a decree for relief on the ground that the court sale is void should be treated as an application under S.40 of the Travancore Civil Procedure Code corresponding to S.47 of the Indian Civil Procedure Code. If the suit is treated as an application under S.40 (Tr. C.P.C.) it is clear that Art.9 of the Travancore Limitation Act will not apply to such an application and that the Article that will apply is Art. 165 corresponding to Art. 181 of the Indian Limitation Act and that the plaintiff will have three years from the time when the right to apply accrues. 14. It is admitted that the plaintiff became a major only on 7.9.1116. The suit was instituted within three years from that date. It is therefore within time. 15. The plaintiff is therefore entitled to a declaration that the court sale in O.S. No. 2038 of 1104 of the Nagercoil Munsiff's Court is void and to restrain the 1st defendant from recovering possession of the plaint property from him. It is represented that the 1st defendant has already obtained delivery of a portion of the property. 15. The plaintiff is therefore entitled to a declaration that the court sale in O.S. No. 2038 of 1104 of the Nagercoil Munsiff's Court is void and to restrain the 1st defendant from recovering possession of the plaint property from him. It is represented that the 1st defendant has already obtained delivery of a portion of the property. The appellant's learned Advocate submitted that although the auction sale is void and not binding on the appellant he is prepared to deposit the auction amount in court before he is allowed to obtain redelivery of the property taken delivery of by the 1st defendant. We therefore set aside the decree of the lower court and declare that the court sale in O.S. No. 2038 of 1104 of the Nagercoil District Munsiff's Court is void and not binding on the plaintiff. We also give him a decree for recovering possession of that portion of the plaint property which was taken delivery of by the 1st defendant as per the court sale in O.S. No. 2038 of 1104. The plaintiff will however deposit in the lower court the auction amount in O.S. No. 2038 of 1104 before obtaining redelivery of the property. In the circumstances of this case we direct both parties to suffer, respective costs both here and in the lower court. The appeal is allowed in the manner mentioned above. Allowed.