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1953 DIGILAW 24 (KER)

Komala Valli v. Kunju Pillai

1953-02-10

GANGADHARA MENON

body1953
Judgment :- 1. The plaintiffs are the appellants. The suit was to set aside a court sale and other execution proceedings and to recover possession of the plaint property with mesne profits. The plaintiffs impugned the court sale as null and void on account of absence of jurisdiction for the court that conducted the sale. The first court decreed the suit. The lower appellate Court reversed the decree of the trial Court and dismissed the suit. 2. It is admitted now that the plaint property was the acquisition in the name of one Andi Ramanathan the grandfather of the plaintiffs. After the death of Ramanathan for the balance of consideration due under the sale deed in his favour the vendors of the property brought a suit in O. S. 156 of 1109 of the Karunagappalli Munsiff's Court impleading Ramanathan's children, Ramanathan Andi and Ramanathan Sankaran as parties. The parties compromised the suit and a decree followed in terms of the compromise. The present 1st defendant was the 5th plaintiff in the suit. It appears he obtained an assignment in his favour of the interests of the other plaintiffs in the decree. He put the decree in execution and the property was proclaimed for sale. The sale was posted to 24-6-1118. In the meantime 1st defendant in that case Ramanathan Andi died. On 24-6-1118 the date to which the court sale was posted the decree holder filed an application that the 2nd defendant in the case was the legal representative of the deceased 1st defendant and that he should be recorded as the legal representative. The plaint property was put in auction on that date and was purchased by the decree holder the present 1st defendant. The plaintiffs in this case who are the children of Ramanathan Andi filed an application to have the sale set aside. The execution Court rejected that application and put the auction purchaser in possession of the property purchased by him. The plaintiffs thereafter have brought the present suit for setting aside the court sale. 3. The plaintiffs in this case who are the children of Ramanathan Andi filed an application to have the sale set aside. The execution Court rejected that application and put the auction purchaser in possession of the property purchased by him. The plaintiffs thereafter have brought the present suit for setting aside the court sale. 3. It is contended that the legal representatives of the deceased 1st defendant in O. S. 156 of 1109 are his children the plaintiffs in this case, that on the death of the 1st defendant they ought to have been impleaded as his legal representatives and notice issued to them under order XXI, rule 22 C. P. C. and that the sale conducted after the death of the 1st defendant in O. S. 156 of 1109 without notice under Order XXI, Rule 22 C. P. C. was without jurisdiction and therefore void. I do not think that the contention can prevail. The parties are admittedly governed by Hindu Law. 4. There is no evidence of any partition between the children of Andi Ramanathan after his death. The property was therefore joint family property and the 1st defendant in O. S. 156 of 1109 was the manager and on his death the 2nd defendant became the manager. He was therefore quite competent to represent the estate and the petition filed by the decree-holder to record him as the legal representative was proper. Relying on the provisions of Section 50 of the Civil Procedure Code and of Order XXI, Rule 22 C. P. C. it is, however, contended that after the death of the 1st defendant a fresh execution petition and a fresh notice under Rule 22 of Order XXI C.P.C. were imperative for the court to get jurisdiction to sell the property. The question then is whether the law demands such a procedure against the legal representatives of a judgment-debtor when the judgment-debtor dies during the pendency of the execution proceedings. There is no specific provision in the Code to that effect. Section 50 of the Civil Procedure Code relied on by the appellant does not say so. That section does not so far appear to have been interpreted to imply that where a judgment debtor dies, there should be a fresh execution petition against the legal representatives. There is no specific provision in the Code to that effect. Section 50 of the Civil Procedure Code relied on by the appellant does not say so. That section does not so far appear to have been interpreted to imply that where a judgment debtor dies, there should be a fresh execution petition against the legal representatives. The procedure that is generally followed, and I think that it is the correct one, is to bring the legal representatives on record and to proceed with the execution. Section 50 only lays down that the execution application must start with the application to execute against the judgment-debtor and if he is dead against the legal representatives. The provisions of Section 50 do not warrant the inference that as soon as a judgment debtor dies during the pendency of an execution application the court looses jurisdiction in the matter altogether and the proceedings come to an end. The court has jurisdiction to proceed with the pending application and receive an application to bring in the legal representatives 'of-the deceased judgment-debtor on record (Vide A.I. R. 1929 Madras 275). Again when the judgment-debtor dies during the pendency of the execution petition does the law require in every case the issue of a fresh notice under Order XXI, Rule 22 C. P. C. to the legal representatives? As stated in the decision, cited above the general principle as laid down by the authorities is "that an initial notice under Rule 22, when issued, does sufficiently, for the purpose of the law, bring into court the estate against which execution is being enforced and sufficiently retains it there, unless the result of the death of the party to whom notice was originally issued is to leave no one at all on the record to represent the estate and thus to effect the disappearance of the estate from the jurisdiction of the court.. If, therefore, there is any person left on the record who can and does sufficiently represent the estate, a fresh notice under R. 22 is not required by law". In this case it is seen from the execution diary in O. S. 156 of 1109 that the initial notice under Order XXI, Rule 22 was served on both the defendants in that case and that 1st defendant died only long afterwards when the property was proclaimed for sale. In this case it is seen from the execution diary in O. S. 156 of 1109 that the initial notice under Order XXI, Rule 22 was served on both the defendants in that case and that 1st defendant died only long afterwards when the property was proclaimed for sale. As already stated the 2nd defendant who was on record was quite competent to represent the estate. The Court sale impugned was therefore valid and is not liable to be set aside. The appeal is without merit and is dismissed with costs. Dismissed.