1. This is an appeal against an order passed by the Assistant Judge of Satara in Civil Appeal No. 193 of 1939 confirming the decree of the Subordinate Judge of Vita in Civil Suit No. 214 of 1937. The appellants in this case were the original defendants, and the suit against them was filed by one Ekanath Bala Lakade under somewhat peculiar circumstances.
2. The property involved in this litigation is revision Survey Nos. 204 and 277 of the village of Chitali in Khanapur Taluka of Satara District. The survey numbers originally belonged to one Maruti Lingu and his nephew Dnyanoba, Maruti Lingu having three-fourths share and Dnyanoba having one-fourth share in the two revision survey numbers. The property had been mortgaged in the year 1864 by Maruti Lingu and Dnyanoba's father Aba to one Chimappa Mahajan for Rs. 1,700. During the pendency of this mortgage, Dnyanoba sold his one fourth share in one of the revision survey numbers, viz. No. 277, to one Aba Nana on May 7, 1917, for Rs. 400 Thereafter Maruti Lingu and Aba Nana filed a suit No. 270 of 1920, for redemption against one Gangaram Anna and other heirs of the original mortgagee Chimappa Mahajan and obtained a decree thereon on July 24, 1922. The decree was under Section 15-B of the Dekkhan Agriculturists' Relief Act by which the mortgagors were directed to take possession of the property and were also ordered to pay the decretal debt in instalments. There was the further order that on failure of the mortgagors to pay certain instalments, the mortgagees were entitled to bring a sufficient part of the mortgaged property to sale. Thereafter on May 27, 1927, Maruti Lingu sold his three-fourths share in the mortgaged properties to Ekanath Bala for Rs. 3,450, and Ekanath, thereupon, obtained possession of those properties. In the meantime, one Bhaulal Gujar filed two suits, Nos. 177 and 178 of 1926, against the heirs of the mortgagee Gangaram Mahajan for monies which were due to him and obtained money-decrees thereon. He also obtained attachment of the mortgagee decree-holder's right in the Civil Suit No. 270 of 1920. Thereafter he filed darkhast No. 224 of 1928 to execute the decree in Suit No. 270 of 1920. During the pendency of the darkhast, Maruti Lingu, one of the judgment-debtors, died. His heirs were not brought on record and the darkhast proceeded against the other judgment-debtor Aba Nana only. In execution of that darkhast, the two revision survey numbers were sold; revision survey No. 277 was purchased by defendant No. 1, and he obtained possession thereof in December, 1930. Revision Survey No. 204 was purchased by defendant No. 2 and he obtained possession thereof in January, 1931. When Ekanath, the vendee from Maruti Lingu, found that he was dispossessed of the two survey1 numbers he filed an application under Order XXI, Rule 100, for being restored to possession. That application was filed on January 13, 1931, and was later converted into an application under Section 47 of the Civil Procedure Code, on July 22, 1933. Later on this application was again converted into a suit under the directions of the lower appellate Court on September 29, 1933, when the Court-fee was paid, and the suit proceeded. The prayer of Ekanath in the suit was that the Court should deliver possession of the property in dispute to him from the defendant auction-purchasers after holding that the possession which the defendants obtained in execution of the decree in Suit No. 270 of 1920 was wrongful.
3. The suit was resisted by the defendant auction-purchasers on various grounds. It was first contended that Maruti Lingu, the predecessor-in-title of the plaintiff, did not have three-fourths share in the suit properties. It was alleged that the Court auction sale in favour of the defendants conferred good title upon them, and that the sale in favour of the plaintiffs during the pendency of the litigation of 1920 was affected by the doctrine of Lis pendens. It was further urged that as the suit was not filed within one year after being dispossessed it was barred under Article 12 of the Indian Limitation Act. And lastly it was submitted that before the defendant auction-purchasers were dispossessed, the Court should adjust equities between them by directing that a certain sum of money specifically left by the vendor with the vendee Ekanath for the payment of the mortgage debt should be utilized in reimbursing the auction purchasers inasmuch as the price they had paid for the execution of the decree had been utilised towards the satisfaction of the decretal debt and the decree stood as fully satisfied.
4. Both the lower Courts held that Maruti Lingu had three-fourths share in the suit property, and that the sale in favour of the defendants did not confer good title upon them inasmuch as in the darkhast proceedings, the estate of Maruti Lingu one of the judgment-debtors was not represented as his heirs were not brought on record. Both the Courts thought that the sale in favour of Ekanath was not affected by the doctrine of lis pendens as Section 52 of the Transfer of Property Act did not have retrospective effect, and that even if it applied, the defendants could not avail themselves of that doctrine as they were merely auction-purchasers. The Court also declined to make any equitable adjustment between the parties on the ground that this was a matter between the mortgagors and the mortgagees with which the defendants, as auction-purchasers were not concerned. Both the Courts held that as the sale in favour of the auction-purchasers was void there was no bar under Article 12 of the Indian Limitation Act. In this view, the trial Court declared that the auction sale held in darkhast No. 224 of 1928 in execution of the decree in suit No. 170 of 1920 was illegal in so far as it affected Maruti Lingu's three-fourths share in the property, and that, therefore, it was not binding on the plaintiff. The trial Court further directed that Ekanath, the vendee from Maruti Lingu, was entitled to three-fourths share in the property mentioned in the plaint, and that he should be put in possession of the properties jointly with the defendants. Further directions were given as regards the ascertainment of the mesne profits and the defendants were directed to pay the costs of the plaintiff and to bear their own. This decree was confirmed in appeal by the Assistant Judge who dismissed the appeal with costs. Against that order the defendant auction-purchasers have come in second appeal.
5. The principal point urged by Mr. Gajendragadkar for the defendants-appellants is that the sale in favour of the defendant auction-purchasers conferred a valid title upon them even though in the darkhast in the course of which the auction sale was held, Maruti Lingu's heirs were not brought on record. His contention was that the decree was a joint decree in so far as it conferred on both Maruti Lingu and Aba, the mortgagors, the right to redeem the property, and that even if Maruti Lingu's name was deleted, his interests were sufficiently represented by his co-judgment-debtor Aba Nana. He further urged that the omission to bring Maruti Lingu's heirs on record was merely an irregularity and did not make the sale void but only voidable, and as the plaintiff's heirs had not brought the suit within one year of their being dispossessed, the suit was barred under Article 12 of the Indian Limitation Act.
6. We are not impressed with the argument that Maruti Lingu's estate was properly or sufficiently represented by Aba Nana in the darkhast proceedings. The decree was one under Section 15B of the Dekkhan Agriculturists' Relief Act, and conferred on the co-mortgagors the right to recover possession of the mortgaged property. To that extent it was a joint decree in their favour which one of the decree-holders could enforce without joining the others (Order XXI, Rule 15, of the Civil Procedure Code). But to the extent to which they were bound to pay the instalment amounts to the mortgagee and conferred on the mortgagees the right to bring the property to sale in default of payment of instalments-they were judgment-debtors, and Mr. Gajendragadkar has cited no authority either from the Code or from decided cases for the proposition that the decree-holder may proceed against the interest of all the judgment-debtors by proceeding only against one of them in a case such as this where he says the right of the mortgagors is one and indivisible. He referred to the case of Jehrabai.v. Bismillabi : AIR1924Bom420 . But in our opinion that case does not assist him. It was held in that case that ' it was sufficient for the plaintiff in a suit, if a defendant dies, to put one of the heirs on the record as his legal representative, who will then represent the estate of the deceased for the purpose of the suit. It is for those who claim to be heirs to come in if they wish to be represented in the suit'. That was the case of a suit and not of a darkhast proceeding. One of the heirs of defendant was already on record as his legal representative, and it was held that he sufficiently represented the estate of the defendant. If in this case there had been several legal representatives of Maruti Lingu and if only one of them had been brought on record, it could have been argued on the authority of this case, that Maruti Lingu's estate was sufficiently represented. But in the present instance, that case is no authority for the proposition that in a darkhast proceeding one judgment-debtor may represent the estate of the other judgment-debtor. Under Section 50 of the Civil Procedure Code, ' 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 representative of the deceased.' Under Order XXI, Rule 22, it is incumbent on the Court, if the execution is taken out Wore than a year after the date of the decree or is taken against the legal representative of a party to the decree, to issue a notice to the person against whom, execution is applied for requiring him to show cause why the decree should not be executed against him. There is also a proviso to that rule where in the discretion of the Court such a notice is dispensed with under certain circumstances. It was held by the Privy Council in the case of Raghunath Das v. Sunder Das Khetri , that where the property of the judgment-debtor is vested in the. Official Assignee under the Indian Insolvency Act, 1848, judgment-creditors who had previously attached certain part of it obtained an order that notice should issue to the Official Assignee to show cause why he should not be substituted for the judgment-debtors as a party, and no further notice was given to the Official Assignee, and the property attached was sold in execution, the auction purchasers obtained no title against the Official Assignee. Approving the decision of the Calcutta High Court in Gopal Chunder Chatterjee v. Gunamoni Dasi I.L.R (1892) Cal. 370, their Lordships held that 'a notice under section 248 of the Code (which corresponds to Order XXI, Rule 22 of the Code of 1908) is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor'. Mr. Gajendragadkar then referred us to the Privy Council case of Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa In that case, the judgment-debtor having died, the decree was executed against his estate. A notice under the rule was issued and served on a person as the legal representative of the judgment-debtor. He appeared and objected that he was not the legal representative. The Court, however, decided that he was the legal representative and proceeded with the execution. The properties of the judgment-debtor were sold in a Court auction. It was ultimately found that the person to whom the notice was sent was not the proper legal representative. The question before the Privy Council was whether the sale under the circumstances was void for want of jurisdiction or only voidable on the ground of material irregularity. Their Lordships decided that the Court had jurisdiction to decide whether a person was the legal representative of the party or not, and that having decided it in a particular manner, the decision could not be said to be without jurisdiction, an that the case was one of material irregularity in the exercise of the jurisdiction am the sale was, therefore, not void. It would be noticed, however, that in the case before their Lordships the legal representative was brought on record though happened to be a wrong person. In the present instance, when Maruti Lingu died a purshis was given that as plaintiff No. 1 was dead the darkhastdar did not wish to proceed against him, and there was an order thereon passed by the Court that the name of plaintiff No, 1 should be deleted. In pursuance of this order, the Court directed on January 10, 1929, that a notice under Order XXI, Rule 22, should issue to plaintiff No. 2 only. The real implications of the case of Malkarjun v. Narhari were explained by their Lordships of the Privy Council in Raghunath Das v. Sunder Das Khetri. They observed as follows at page 257 of the Report:
In the case in 27 Indian Appeals such a notice had been served (meaning thereby notice under Section 248 of the Code), and the Court had determined, as it had power to do for the purpose of the execution proceedings, that the party served with the notice was in fact the legal representative. It had, therefore, jurisdiction to sell, though the decision as to who was the legal representative was erroneous. There being jurisdiction to sell, and the purchasers having no notice of any irregularity, the sale held good unless or until it was set aside by appropriate proceedings for the purpose. The present case is of a wholly different character. No proper notice was served under the section, and the respondents had full notice of, and indeed were respondents for the irregularities of the procedure adopted.
7. The full bench case of Kanchmalai Pathar v. Shahaji Rajah Sahib I.L.R (1935) Mad. 461., merely emphasises the principle laid down in Raghunath Das v. Sunderdas Khetri that the sale of a deceased judgment-debtor's estate without his legal representative being brought on record is void and confers no title on the auction-purchasers. That was a case where there was only one judgment-debtor. He died during the pendency of the execution proceedings. Though both the decree-holder and his Vakil were aware of the death of the judgment-debtor, no application was made under Section 60 of the Civil Procedure Code for execution of the decree against the legal representatives of the deceased judgment-debtor, and no notice was served on the legal representatives in accordance with Order XXI. Rule 22 of the Code. The sale was held and at the sale the property was purchased by a stranger. It was held by the full bench of the Madras High Court that the sale was void and not merely voidable. The question then is : Is the principle different when one of the. judgment-debtors is dead, his legal representatives are not brought on record, and the darkhast proceeds against the other judgment-debtor only. We venture to think that it is not, and on the principle enunciated by the Privy Council in Raghunath Das v. Sundar Das Khetri, it must be held that the sale is void and confers no title on the auction-purchasers at least to the extent of the share of the deceased judgment-debtor. The present case is not unlike the case in Srischandra Nandi v. Rahatannessa Bibi I.L.R (1930) Cal. 825, wherein it was held that 'an auction sale held in execution of a mortgage decree without serving a notice under Order XXI, Rule 22, on one of the judgment-debtors, is not void in its entirety, but it only does not bind the share of that judgment-debtor.' In holding this view, the Calcutta High Court purported to follow the full bench ruling of the Madras High Court in Rajagopala Ayyar v. Ramanujachariar I.L.R (1923) Mad 288. After referring to the Privy Council rulings, their Lordships observed as follows at p. 827:
Be that as it may, the question in the present case is whether the entire sale should be set aside. There is no decision of this court, in, which the question has been expressly considered and answered in the affirmative. On the other hand the Madras High Court in a full bench decision in the case of Rajagopala Ayyar v. Ramanujachariar has held that the sale is void only as against the person to whom the notice was not given. The Judicial Committee in the case of Raghunath Das v. Sunder Das Khetri and this Court in. the case of Gopal Chunder Chatterjee v. Gunamoni Dasi have held that the court would have no ' jurisdiction to sell the property by way of execution as against the legal representatives of the deceased judgment-debtor' on whom the notices were not issued. Moreover, a decree-holder should not find himself in a worse position by reason of his omission in this respect than what he would be in, if he omits to make the particular legal representative a party to the execution. In the latter case, the sale, on the authority of the decision of the Judicial Committee in the case of Khiarajmal v. Daim (1904) L.R. 32 IndAp 23 : 7 Bom. L.R. 1, would not bind the share of that particular legal representative and would be void to the extent of that share. It would therefore be more in consonance with their Lordships' decision in the case cited to hold that the sale in the case before us is not void in its entirety, but only that it does not bind the share of the applicant.
8. They applied this principle to a mortgage sale also. With respect, we are in agreement with this view of the Calcutta High Court and hold that the sale in so far as it affects the share of Maruti Lingu was void and without jurisdiction and conferred no title on the auction-purchasers.
9. Mr. Gajendragadkar further argued that the plaintiff was affected by the doctrine of lis pendens inasmuch as he purchased the interest of Maruti Lingu in the year 1926 while the redemption suit was pending since 1920 and the decree obtained thereon had not been fully executed. The lower Courts thought that Section 52 of the Transfer of Property Act was not retrospective in its operation, but it has been recently held by a division bench of this Court in Govind Ramchandra v. Purnanand (1943) Letters Patent Appeal No. 10 of 1942, Decided by N.J. Wadia and Weston JJ., on September 1 of 1943, that the section is retrospective. In view of this, it must be held that the plaintiff as the purchaser of Maruti Lingu's share in the property was affected by the decree. But he cannot be in a worse position than Maruti Lingu himself would have been. If Maruti Lingu's share had been validly sold, the plaintiff would have been bound by that sale as a purchaser pendente lite, but as we hold that the sale was void and did not affect Maruti Lingu's three-fourths share in the property, the plaintiff is not affected even by the doctrine of lis pendens.
10. It was further urged by Mr. Gajendragadkar that if the sale is voidable and the suit is not brought within one year under Article 12 of the Indian Limitation Act, the suit is barred by limitation. If, as we hold, the sale is void, no question of limitation arises. But even if it is held voidable, the suit must be held to have been instituted within one year. An application under Order XXI, Rule 100, was filed on January 13, 1931, which was later converted into an application under Section 47 on July 22, 1933, and later still converted into a plaint in a regular suit on September 29, 1933. The permission given to convert the original application into a suit must relate back to the date when the original application was filed, and it was filed within one month of the plaintiff being dispossessed. Merely because the court-fee was paid later does not mean that the suit must be deemed to be instituted on that date.
11. Lastly, it was urged by Mr. Gajendragadkar that if the sale is held to be void, equities should be adjusted between the auction-purchasers and the plaintiff inasmuch as the money paid by the auction-purchasers in execution of the decree has gone to satisfy the decretal debt, and the decree now stands as fully satisfied. We think that there is considerable justification in the claim which is so put forward. When the property was purchased from Maruti Lingu by Ekanath, a sum of Rs. 2,385 was kept with the vendee Ekanath specifically for the purpose of paying off the mortgage debt of the decree-holder. Whether any part of the money so kept with Ekanath was utilized towards the satisfaction of the decretal debt or not is not altogether clear. But it is true that when the properties were sold in execution of the decree, the auction-purchasers paid Rs. 2,640, and this money having gone towards the payment of the debt of the decree-holders, the decree against Maruti Lingu's share in the property stands fully satisfied. If, therefore, the auction-purchasers are now dispossessed, they would not only be losing three-fourths share in the properties in suit but will also have lost moneys which they paid for the purchase of the properties at the auction sale. On the other hand, plaintiffs, Ekanath's heirs, will be obtaining possession of the three-fourths share of Maruti Lingu in those properties free from any decretal debt and will have still with them the sum of Rs. 2,385 which were deposited with them specifically for the purpose of paying the decretal debt. We think that the equities between the parties must be adjusted. The auction purchasers have undoubtedly validly purchased one-fourth share which belonged to Aba Nana, one of the co-mortgagors. Having validly purchased that share they step into his shoes and were entitled to redeem the whole of the property by payment of the decretal debt. Under Sections 82 and 92 of the Transfer of Property Act, the auction-purchasers, as stepping into the shoes of one of the co-mortgagors, are subrogated to the rights of the mortgagee and are entitled to recover the co-mortgagors' quota in the payment of the decretal debt. We, therefore, confirm the decree of the lower Courts subject to this modification that before recovering the joint possession, the heirs off Ekanath shall pay to the appellants such amount as they would have to pay, pro rata for the redemption of their share in the mortgaged property, after deducting such amount as they or their predecessor-in-title, Ekanath, may have properly paid towards the satisfaction of the mortgage. This amount shall be determined in execution proceedings. The appellants will pay half the costs of the respondents in this Court and bear their own. If the plaintiffs have already taken joint possession, it will be open to the appellants to execute this decree and get the amount determined and recover it.