Ram Lakhan Prasad v. Vijay Kumar — 1971 DIGILAW 67 (PAT)

JUDGMENT : L. Untwalia, J. 1. This is a case which amply demonstrates the correctness of the dictum of the Privy Council that difficulty of a decree-holder starts after he has obtained a decree. I shall briefly state the chequered history of the execution case which has given rise to this miscellaneous second appeal by the decree-holder. Ramgopal Lal respondent no. 2 in this appeal, for self and as guardian of his minor son, Vijay Kumar, respondent no. 1, had executed a mortgage bond in favour of Ramlakhan Prasad, the appellant in this appeal. A mortgage suit was filed by the appellant against the respondents. It appears that the defendants did not appear in the mortgage action. One Shri Sachchida Nand Kishore, a Pleader guardian ad litem, was appointed in the suit for the minor defendant. The preliminary decree and the final mortgage decree were passed on 22.2.55. In the decrees Vijay Kumar was shown under the guardianship of his father Ramgopal Lal. The appellant filed Execution Case No. 50 of 1955 for execution of the mortgage decree. Naturally in his execution petition he put Vijay Kumar under the guardianship of his father Ramgopal in accordance with the final decree. The execution proceeded, and on the 12th of June, 1956 a piece of land measuring 1.06 acres in plot no. 775 in Kankarbagh, one of the quarters in the town of Patna, was sold for Rs. 6,000/-. It may be stated here that in the execution proceeding valuation of the property sought to be sold had been fixed under Section 13 of the Bihar Money Lenders Act. The sale was confirmed on the 12th of July, 1956, and thereafter on 26.7.56 the execution case was dismissed on full satisfaction. It also appears that there was a surplus of Rs. 371/- in the sum of Rs. 6,000/- after satisfying the mortgage decree which was being executed in Execution Case no. 50 of 1955. The delivery of possession is said to have been effected in favour of the decree-holder on the 30th of September, 1956. 2. On the 12th of December, 1959 Vijay Kumar filed an application labelling it under ORDER :21 Rule 90 of the Code of Civil Procedure (hereinafter called the Code). He filed this application through Shrimati Deoki as guardian and next friend of the minor, alleging her to be his phuphu (father's sister). 2. On the 12th of December, 1959 Vijay Kumar filed an application labelling it under ORDER :21 Rule 90 of the Code of Civil Procedure (hereinafter called the Code). He filed this application through Shrimati Deoki as guardian and next friend of the minor, alleging her to be his phuphu (father's sister). In this application the statement was that the processes in the execution case had been served bala bala and all proceedings had been taken fraudulently. Vijay Kumar was said to be living with his phuphu and not with his parents, and his phuphu had no knowledge of the execution case. She is said to have learnt for the first time about the impugned sale a week before the filing of the application. Upon these grounds, the prayer in the petition was (Sic) to set aside the sale or to declare the sale void. There was no allegation in this petition as to whether any delivery of possession had been effected and no prayer was made to recover back possession of the property sold on 12.6.56. 3. The decree-holder filed a rejoinder to this petition of respondent no. 1 on 17.6.61. The case was taken up for hearing on 19.8.61 and, as it appears from the rejoinder of the decree-holder later filed on 16.9.61 in reply to another petition filed by respondent no. 1 on 19.8.61, a point was subsequently pressed in the petition filed on that date (19.8.61) that the minor applicant had been put under the guardianship of a pleader guardian ad litem in the suit and in the execution he was put under his natural guardian, the father. The decree-holder in his rejoinder had endeavoured to meet this point by stating some facts. The application filed by respondent no. 1 on 12.12.59, which was numbered as Miscellaneous Case 92 of 1959, had chequered history. In the first instance, it was treated as an application under ORDER :21 Rule 90 of the Code and it was dismissed for non deposit of security money as required under the Patna Rule. After restoration, the application (Sic) which was also rejected by the court below on 26.5.61. The matter came up in civil revision to this Court in Civil Revision No. 933 of 1962 which was allowed by me on 8.3.63. The court below was directed to proceed with the application filed by respondent no. After restoration, the application (Sic) which was also rejected by the court below on 26.5.61. The matter came up in civil revision to this Court in Civil Revision No. 933 of 1962 which was allowed by me on 8.3.63. The court below was directed to proceed with the application filed by respondent no. 1 on 12.12.59 as an application under Section 47 of the Code and dispose it of in accordance with law. 4. The learned Subordinate Judge who tried Miscellaneous Case no. 92 of 1953 after the ORDER :of this Court in the civil revision dismissed the application holding that the decree-holder did not practice fraud or suppress processes of the execution case or keep the JUDGMENT :-debtor out of knowledge of the execution proceeding or the impugned sale and that the applicant did not sustain any substantial injury as the property was not shown to have been sold for an inadequate price. He also held that the application for setting aside the sale was barred by limitation. 5. Respondent no. 1 filed Miscellaneous Appeal no. 152/7 of 1964 in the lower appellate court. This appeal was disposed of on 4-3-67 by the 1st Additional District Judge, Patna. Shri M. Yahya, the Presiding Officer of that court on that date, allowed the appeal and held that the sale was void because the minor was not properly represented in the execution case and the mandatory requirement of Sub-rule (5) of Rule 3 of ORDER :32 of the Code was not complied with. He also held that the applicant had suffered substantial injury. He did not, however, go into the question of limitation at all and merely stated-- There being nothing on the record to show that the minor JUDGMENT :-debtor had any information about the execution proceeding in which he was not represented, it is not possible to say that he knew about the alleged sale and D.P. on earlier occasion. 6. This miscellaneous appeal in the first instance came before a learned single Judge of this Court. The learned Judge, in a brief JUDGMENT :, stated that after hearing the parties at length he was of the opinion that the appeal could not be finally determined without a clear finding of fact on the two questions framed by him in his JUDGMENT : and ORDER :dated 31.7.68. The learned Judge, in a brief JUDGMENT :, stated that after hearing the parties at length he was of the opinion that the appeal could not be finally determined without a clear finding of fact on the two questions framed by him in his JUDGMENT : and ORDER :dated 31.7.68. The findings of the lower appellate court on the two questions formulated were called for presumably in exercise of the power under ORDER :41 Rule 25 of the Code. The two questions formulated by the learned Judge are these: 1. Was the delivery of possession in favour of the appellant effected on the 30th September, 1956, as claimed by the appellant; if not, were the respondents dispossessed of the land at a later date, as claimed by them? 2. Were the respondents kept out of knowledge of the auction sale and of their rights to apply to set aside the same by reason of fraud on the part of the appellant decree-holder-auction-purchaser, and, was it true that on that account the applicant-JUDGMENT :-debtor came to know about this auction sale only a week before he filed the application for setting aside the sale.? 7. In pursuance of the requisition of this Court, the matter was heard by another Additional District Judge, Shri Awadh Kishore Sinha. His findings are that the delivery of possession was not effected on the spot and that the applicant was dispossessed from the disputed land not by the decree-holder but by the Land Acquisition Department of the Government of Bihar on a subsequent date. It may be stated here that the disputed land along with other pieces of land was acquired by the Government under the Land Acquisition Act. The value of 1.72 acres of land including 1.06 acres, the land in dispute, was fixed at Rs. 22,000/- and odd in the land acquisition case. This time, the learned Additional District Judge has held that on these materials the price at which the disputed land measuring 1.06 acres was sold was shockingly low. He has further held that the decree-holder has failed to prove that the notice under ORDER :21 Rule 22 was served even on respondent no. 2 and that he had knowledge of the execution proceeding and sale for the first time on 24.1.57. He has found that respondent no. He has further held that the decree-holder has failed to prove that the notice under ORDER :21 Rule 22 was served even on respondent no. 2 and that he had knowledge of the execution proceeding and sale for the first time on 24.1.57. He has found that respondent no. 1 was dispossessed of the land in question after March, 1957 in the land acquisition case and that there was fraud in conducting and publishing the sale and respondent no. 1 came to know about it on 24.1.57. 8. After receipt of the said findings, objections were filed by the appellant to challenge those findings. The matter was heard by A.B.N. Sinha, J., the same learned Judge who had heard the appeal earlier, and after hearing the matter at great length his Lordship was pleased to refer the case to a Division Bench for decision. That's how the matter has come before us for disposal. 9. A few more facts may be stated at the outset. There was another execution being Execution Case No. 2 of 1956 in which the decree-holder was one Shri Kunj Bihari Lal and Ramgopal, respondent no. 2, was the JUDGMENT :-debtor. In that execution case, the surplus money of Rs. 371/- in the present Execution Case No. 50 of 1955 was attached. Ramgopal as the guardian of Vijay Kumar, respondent no. 1, filed several applications in Execution Case no. 2 of 1956 as also in the present execution case to save that money from being proceeded against for the benefit of Kunj Bihari Lal on the ground that the entire surplus money belonged to his minor son and not to him. A reference to such applications has been made in the JUDGMENT : of the learned Subordinate Judge as also in the findings recorded by Sri Awadh Kishore Sinha. It is not necessary for me to refer to them in any detail. Suffice it to say that one of such petitions was filed on 24th of, January 1957 in Execution case no. 2 of 1956, on the basis of which the learned Additional District Judge has held that the father of the applicant had for the first time knowledge of the sale on that date. Suffice it to say that one of such petitions was filed on 24th of, January 1957 in Execution case no. 2 of 1956, on the basis of which the learned Additional District Judge has held that the father of the applicant had for the first time knowledge of the sale on that date. Another petition was filed in this very execution case some time in March, 1957 which also showed that the father was taking active interest on behalf of his minor son to protect his interest in the Money Execution Case no. 50 of 1955. In this background it is to be pointed out that in the application filed by respondent no. 1 there was no allegation that his natural guardian, the father, had any adverse interest against him or that he was negligent or dishonest in not safeguarding his interest in the execution case. Nor was it alleged in that petition that the decree under execution had been wrongly prepared by showing Vijay Kumar wrongly under the guardianship of his father Ramgopal Lal. It appears that subsequently this matter was found out that in the suit a pleader guardian ad litem had been appointed (Ext. 3 is the ORDER :-sheet of the mortgage suit) and, therefore, when Miscellaneous Case 92 of 1959 was first taken up for hearing, this alleged infirmity in the execution proceeding was sought to be introduced later. Be that as it may, today I shall proceed on the footing that in the suit the minor had been put under a pleader guardian ad litem. The decree prepared, however, showed him under his natural guardian. The execution case, therefore, proceeded in accordance with the decree by putting him under his natural guardian. The only question, therefore, which, to my mind fell for decision in this case at any stage--especially in this Court--was whether the sale held in this case on 12.6.56 in the circumstances just mentioned was a bad sale if so, whether it was voidable or void and whether the application filed by respondent no. 1 for getting rid of the same was within time. But for one reason or the other, too many complications were tried to be created by the JUDGMENT :-debtor in the court below as also in this Court. 10. 1 for getting rid of the same was within time. But for one reason or the other, too many complications were tried to be created by the JUDGMENT :-debtor in the court below as also in this Court. 10. It is to be pointed out in the first instance that without an allegation of any adverse interest against the natural guardian or without an allegation of his having acted negligently or against the interest of the minor, the latter was not competent to file an application through another guardian. Be that as it may, assuming the application filed through his phuphu was competent, it is to be emphasised that there was no allegation in that petition that notice under ORDER :21 Rule 22 of the Code was not served upon the father of the minor nor was there any allegation as to the non-service of any other notice, as for example, under Section 13 of the Bihar Money Lenders Act or under ORDER :21 Rule 66 or the like. In the petition it was not alleged that the delivery of possession which, according to the records of the case, was effected on 30.9.56 was not actually effected on the spot. These questions, in my opinion, therefore, do not fall for consideration and any finding either called for by this Court or recorded by the court of appeal below is of no avail to respondent no. 1. I may point out here that the learned Additional District Judge while recording his finding has said that in view of the allegations in the petition filed by respondent no. 1 it was for the (Sic) JUDGMENT :-debtor to show that notice was not served and secondly, in support of that allegation, it was necessary to examine the father or some other competent person to say that such a notice was not served. Then one could say that the burden shifted on to the decree-holder to prove that the notice was served. It may be pointed out that not even the phuphu of the minor has examined herself, as remarked by the learned Subordinate Judge. In such a situation, the finding recorded by the lower appellate court that fraud was practised is wholly wrong. It may be pointed out that not even the phuphu of the minor has examined herself, as remarked by the learned Subordinate Judge. In such a situation, the finding recorded by the lower appellate court that fraud was practised is wholly wrong. The basis of the fraud mainly seems to be the finding as to the non-service of notice under ORDER :21 Rule 22 on Ramgopal Lal-a finding which is not binding in second appeal--because of the obvious error of law committed in arriving at that finding. 11. In regard to the question of delivery of possession, no doubt, a finding was called for by this Court and the lower appellate court has recorded that the delivery of possession was not effected on the spot. This is a finding of fact which is binding in second appeal. But it may be a repetition to say that no such case has been made out by respondent no. 1 in his application. As I have said above, the application was not for recovery of possession alleging dispossession but it was an application merely to get rid of the sale. 12. On the question of valuation also, I will assume in favour of respondent no. 1 that the finding recorded by the court below, after remand is correct. But what is the finding recorded? The finding recorded is that the value of 1.72 acres, as fixed in the land acquisition case, was Rs. 22,000/- and odd. On that basis, if I may calculate, the value of 1.06 acres would be roughly Rs. 14,000/-. The price fetched at the sale was Rs. 6,000/-. It is obvious that the remark of the learned Additional District Judge that the price was shockingly low is not sustainable in law. 13. The main question, however, remains to be decided a question which I have posed above--namely, what was the effect of the sale held on 12.6.56 in the circumstances of this case where there was some discrepancy in the matter of guardianship of the minor. 14. 13. The main question, however, remains to be decided a question which I have posed above--namely, what was the effect of the sale held on 12.6.56 in the circumstances of this case where there was some discrepancy in the matter of guardianship of the minor. 14. Under ORDER :32 Rule 3 of the Code if the natural guardian does not appear for a minor defendant, a guardian ad litem has to be appointed by the court, and under Sub-rule (5)-- A person appointed under Sub-rule (1) to be guardian for the suit for a minor shall, unless his appointment is 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 any proceedings in the execution of a decree. A guardian ad litem of the minor was appointed for the suit. He had to continue as his guardian not only in the suit but also execution proceeding. But if due to the mistake of the office the decree put him under the guardianship of his natural guardian, and accordingly in the execution proceeding, he was shown under his natural guardian, can it be said that there was a violation of the mandatory provision of the requirement of Sub-rule (5), as has been the view of the learned Additional District Judge, Shri Yahya? I am unable to subscribe to this view. Sub-rule (5) merely enjoins that the guardian so appointed shall continue in the execution proceeding unless his appointment is terminated by retirement, removal or death. But if without adopting this course a minor is put under his natural guardian and there is nothing to show that the natural guardian had any adverse interest against the minor or was so grossly negligent as not to protect his interest, the mere failure to obtain an ORDER :of removal of the guardian ad litem, in my opinion, will not nullify the proceeding and the actions taken therein. It will be a matter of irregularity in the circumstances that the minor was put under the natural guardian in the decree and accordingly in the execution case. That being so, I am firstly of the opinion that there was no infirmity in the sale held. Even if there was any, it was merely a voidable sale and not a void one. That being so, I am firstly of the opinion that there was no infirmity in the sale held. Even if there was any, it was merely a voidable sale and not a void one. I do not propose to refer to numerous authorities cited in the court below as also in this Court in this regard. But I would like to refer to one authority cited on each side. Mr. K.D. Chatterji, learned counsel for the appellant, relied upon a Bench decision of this Court in (1) Nathu Mander V. Suraj Narain Jha (A.I.R. 1948 Pat 415) and Mr. N.P. Agarwalla, learned counsel for respondent no. 1, placed reliance upon another Bench decision of this Court in (2) Ramchandar Singh V. B. Gopi Krishna Dass (A.I.R. 1957 Pat 260). Although the facts of Nathu Mander's case are slightly distinguishable, the ratio of the case does help the contention put forward on behalf of the appellant. In the rent suit Khosali's nephews had been represented by a guardian ad litem. Notice of the execution proceeding was not served on this guardian ad litem. The minors were represented by their uncle Khosali. The sale was held and subsequently Khosali, on his own behalf and on behalf of his minor nephews, made an application to have the sale set aside. In such a situation, it was held that the sale could not be set aside as the minors had been adequately represented in the execution proceeding. There are two points of distinction between the facts of that case and those of the present one. One is in favour of the appellant and the other is against him. It is not clear in that case whether the decree drawn up had put the nephews under the guardianship of Khosali although they had been put under the guardianship of a guardian ad litem in the suit. But the instant decree put the minor under the guardianship of his natural guardian. There is (Sic) in favour of the appellant. There Khosali himself had applied for setting aside the sale on his own behalf and on behalf of his nephews. Here the minor only had applied. This is a point of distinction against the appellant. But the instant decree put the minor under the guardianship of his natural guardian. There is (Sic) in favour of the appellant. There Khosali himself had applied for setting aside the sale on his own behalf and on behalf of his nephews. Here the minor only had applied. This is a point of distinction against the appellant. But the net result, in my opinion, is in favour of the appellant, and on the principle decided in that case I hold in this case that there was no prejudice caused to the minor. The minor was adequately represented by his natural guardian, and the mere failure to obtain an ORDER :of removal of the pleader guardian did not bring about an infirmity in the examination proceeding so as to make the sale bad. Minor's interest, in my opinion, did not suffer in the least in the circumstances. 15. In (2) Ramchandar's case (A.I.R. 1957 Pat 260) relied on by respondent no. 1, the fact was that a minor JUDGMENT : debtor who had been substituted during the pendency of the execution case was put under the guardianship of his mother who was not this natural guardian. An ORDER :of the court under ORDER :32 Rule 3(4) was necessary to proceed in the execution against the minor under the guardianship of his mother. Without such an ORDER :the execution was incompetent, and in that situation it was held that there was a violation of the mandatory provision of law, there was no representation of the minor in the execution proceeding and the sale held was void. The minor in the instant case was put under the guardianship of his natural guardian. No ORDER :in terms of ORDER :32 Rule 3(4) was necessary. The infirmity, I have already pointed out, was not such as to make the sale bad in this case on the alleged ground of non-representation of the minor in the execution proceeding. 16. Even assuming that the sale was voidable, an application filed on behalf of the minor on 12.12.59 was obviously barred by limitation (Sic) under Section 47 of the Code to set aside sale was governed by Article 166 of the Limitation Act, 1908. Assuming further in favour of respondent no. 16. Even assuming that the sale was voidable, an application filed on behalf of the minor on 12.12.59 was obviously barred by limitation (Sic) under Section 47 of the Code to set aside sale was governed by Article 166 of the Limitation Act, 1908. Assuming further in favour of respondent no. 1 that the sale was void, still then it is clear to me that the application filed beyond 3 years of the date of sale was barred by limitation. The law in this regard may be summarised like this. The JUDGMENT :-debtor may treat the sale void and a nullity and sit tight over the matter. If he subsequently comes to get rid of the sale either for declaring it void or by way of abundant precaution for setting it aside, and if the court finds that the sale was not void but was voidable, then an application beyond 30 days will fail. But if the sale is found to be void then such a declaration or a formal setting aside of the sale can be done only when the JUDGMENT :-debtor would have come in accordance with Article 181 of the Limitation Act, 1908 within 3 years of the date of sale. The right to get rid of the sale accrues by the sale. If because of the fraud practised by the decree-holder, a JUDGMENT :-debtor is kept out of his knowledge of his right to apply, as was the case in (3) Ramdhari Singh V. Saligram Singh (A.I.R. 1954 Pat 429) relied on by respondent no. 1, the matter is different. Then he gets a right to apply only when he gets the knowledge of the sale on the discovery of the fraud. But in absence of any such thing, the starting point of limitation will be the date of sale if the JUDGMENT :-debtor--pure and simple--wants to get rid of the sale. But if the sale is a nullity, as I have said above, he may sit tight over the matter and may come to seek recovery of possession of the property after dispossession, as was the case in (4) Merla Ramanna V. Nallaparaju (A.I.R. 1956 SC 87). In that case, the suit was filed for recovery of the property which had been sold in excess of the decree. The sale of such a property which was not covered by the mortgage decree was void. In that case, the suit was filed for recovery of the property which had been sold in excess of the decree. The sale of such a property which was not covered by the mortgage decree was void. The suit was held to be not maintainable but it was allowed to be converted into an application under Section 47 of the Code. Venkatarama Ayyar, J., held that the right to apply under Article 181 accrued when the JUDGMENT :-debtor was dispossessed and the starting point of 3 years' limitation was on the date of dispossession. I may also point out that there are several decisions in which a view has been taken that if the sale is void or a nullity, the JUDGMENT :-debtor, if he remains in possession, may sit tight over the matter for any length of time and may resist any proceeding or suit of the decree-holder for possession irrespective of the question of time and if he succeeds in proving that the sale was a nullity then his right was not affected and he can resist a claim of possession put forward by decree-holder irrespective of the length of time when such a defence is put forward. It is, therefore, to be appreciated that the period of limitation of 3 years under Article 181 will depend upon the nature of the proceeding followed by the JUDGMENT :-debtor. Apart form the question of fraud, it can bring in a different date under Article 181 of the Limitation Act. If the JUDGMENT :-debtor wants to get rid of the sale either by a declaration of its voidness or its formal setting aside, then he must come within 3 years of the date of sale. But if he comes for recovery of possession then his right as to possession is affected only by dispossession and he may come within 3 years of his dispossession. In this case, as I have said above, the minor JUDGMENT :-debtor merely wanted to get rid of the sale. No word was said in regard to the delivery of possession and in such a situation the application filed on 12.12.59, even if the sale be void, was obviously beyond 3 years of the date of sale and was barred by limitation under Article 181 of the Limitation Act, 1908. No word was said in regard to the delivery of possession and in such a situation the application filed on 12.12.59, even if the sale be void, was obviously beyond 3 years of the date of sale and was barred by limitation under Article 181 of the Limitation Act, 1908. There was no question of fraud on the father of the applicant which kept the father or the minor out of knowledge. The only infirmity in the execution case, as I have said above, was not of a kind which could be attributed to any fraudulent act of the decree-holder. I may also point out here that if the contention put forward by respondent no. 1 on the basis of (1) A.I.R. 1956 SC 87 that starting point of limitation would be the date of dispossession of the JUDGMENT :-debtor is correct then in this case on the facts found by the learned Additional District Judge in his findings, there was no delivery of possession in favour of the decree-holder, the JUDGMENT : debtor was dispossessed in the land acquisition case and hence the period of limitation did not start and had not started at any time. Obviously, on the basis of this case, this will be an absurd view to take and I have no hesitation in holding that even assuming, although not accepting, that the sale was void, the application filed by respondent no. 1 was obviously out of time. It is curious that Ramgopal Lal, the father of respondent no. 1 was taking so much interest on behalf of the minor in January, 1957 to save the sum of Rs. 371/- but if there was any point in getting rid of the sale held on 12.6.56, he would not have taken care to protect the property. It seems to me that merely to harass the decree-holder this petition was put in on 12.12.59 at the instance of the father purporting to put the minor under the guardianship and care of his phuphu Shrimati Deoki. For the reasons stated above, the appeal is allowed, the JUDGMENT : and ORDER :of the lower appellate court are set aside and those of the execution court are restored. In the special circumstances of the case, there will be no ORDER :as to cost. Madan Mohan Prasad, J. I agree. Appeal allowed.