1. The appellant is the auction purchaser of the property which was sold in execution of the decree passed in O. S. No. 159/62 on the file of the District Munsif's Court, Kavali, During the pendency of the suit, the defendant therein viz., Venkamma died and her sans and daughter viz., (1) Veera Raghavareddy (2) Ramachandra Reddy; (3) Venkatasubbamma and (4) Annapurnamma mere brought on record and thereafter a decree was passed against the estate of Venkamma. The decree-holder then filed E. P. No. 81/70. That E. P. was transferred to the District Munsifs Court, Kovur because the property was situated within the jurisdiction of Kovur D. M C. Notices under O. 21, R. 66 C. P.C. mere issued to ail the Judgment-debtors who were the legal representatives of Venkamma and those notices mere served on them on various dates. Eventually the sale was held on 10-1-1972 and was confirmed on 15-2-1972 Unfortunately however Veeraraghavareddy died on 7-1-72 i. e three days before the sale took place. Consequently, his legal representatives could not be brought on record before the sale took place.
After the sale was confirmed, the auction purchaser files E. A. No. 163/72 in the District Munsifs Court, Kovur for bringing the legal-representatives of Veeraraghavareddy on record. The auction-purchaser also filed E. A. No. 162/72 for delivery of possession of the property purchased by him in the Court auction. The District Munsif, Kovur dismissed E.A. No. 163/72 on the ground that the legal representatives should be brought on record by the transferor Court and not by the transferee Court. It therefore directed the auction purchaser to move the District Munsifs Court, Kavali for bringing the legal representatives of the deceased Veeraraghavareddy on record. While dismissing E. A. No. I63/72, the District Munsif, Kovur consequently dismissed E. A, No. 162/72. It is to be noted at this stage that this order on E. A. No. 162/72 was a consequential order, as E. A. 163/72 was dismissed.
The auction purchaser then filed I. A. No, 151/73 in District Munsif's Court, Kavali for bringing the legal representatives of Veeraraghava Reddy on record. This application was filed on 29-11-1978 and it was ordered on 17-8-1875. Thereafter the auction purchaser again moved the District Munsif's Court, Kovur by filing E. A. No. 35/74 for delivery of possession. It was then that the legal representatives of Veeraraghavareddy raised the objection that since the legal representatives of Veeraraghavareddy were not brought on record when the sale took place as such the sale was void. It was also pleaded that the dismissal of E. A. Nos. 162 of 1972 were on merits, and that I. A, 151/73 was barred by limitation. The District Munsif, Kovur overruled all the objections and ordered E. A. No. 95/74. It is to be noted that when E. A. No, 35/ 74 was filed in the District Munsif's Court, Kovur the jurisdiction from Kavali District Munsifs Court in certain matters wan transferred to the District Munsif's Court. Kovur and that is why the auction-purchaser moved the District Munsifs Court, Kovur directly by filing E. A. No, 35/74. The legal representatives of Veeraraghavareddy, aggrieved by the order of the District Munsifs Court, Kovur in E A. 35/74 filed an appeal and the Appellate Court allowed the appeal. Hence the present C. M. S. A. by the auction purchaser.
2. Mr. M. B. Ramasarma, the learned Advocate assails the judgment of the appellate Court on the following grounds: (1) His contention is that the sale held on l0-1-72 is not void because the estate of Venkamma was sufficiently represented. So far as this contention is concerned, Mr. Dasaratharamareddy the learned advocate for the respondents contended that the contention of sufficient representation or effective representation was not at all raised in the lower Court, nor was it raised in the Second Appeal and therefore it cannot be raised now. But I find that in the lower Appellate Court the contention of effective or sufficient representation was in fact raised and the lower Appellate Court in paragraph 4 of its judgment has discussed this aspect. Since this point of effective or sufficient representation has not been raised in the grounds of appear Mr. Ramasarma was given an opportunity to file an application for raising this as additional ground.
Therefore, Mr. Ramasarma filed C. M. P. No. 9839/78 with a prayer to raise this contention of effective representation. Mr. Ramasarma was directed by me to tile this application because it would wt be proper to take the learned counsel for the respondents by surprise Mr. Dasaratharamareddy has also filed a counter to this application. Since the question of effective representation has already been discussed and was taken note of by the lower Appellate court as is evident from para. 4 of its judgment, I see no reason to discuss C. M. P. No.9839/78, because to my mind this point of effective representation was in fact taken up and discussed in the lower Appellate Court and it would not be proper to refuse Mr. Ramasarma from arguing this point. Therefore, C M. P. No. 9839/78 is allowed.
The main contention with regard to sufficient or effective representation of the estate of Venkamma, as submitted by Mr. Ramasarma is that in E. P. 81/70 the legal representatives. of Venkamma were made eo nomine parties and notices under Order 21. Rule 66 were served on them. In spite of service of these notices, none of the legal representatives of Venkamma appeared before the Court and raised any objection However, if one of the legal representatives at Venkamma had died immediately before the sale took place and therefore the legal representatives of deceased Veeraraghavareddy were not brought on record, it cannot be said that the sale is void because the estate of Venkamma is effectively or sufficiently re presented by the other three legal representatives.
2A. Mr. Ramasarma next contended that in any view of the matter, in view of the amended provisions of Order 21, Rule 22 by insertion of O. 21, R. 22-A in the amended Act if the Code of Civil Procedure, there is no question of sale being void, even if the legal representatives of the judgment-debtors are not brought on record.
It was finally contended by Mr. Ramasarma, that in view of the orders passed in E. A Nos. 162 and 163/72 on 12-10-1972. the subsequent application i. e., E. A. 35/74 cannot be considered to be a fresh application but would be a revival of the earlier application in as much as the dismissal of E.A. Nos. 162 and 163/72 were not on merits and no fault lay with the auction-purchaser for their dismissal, because the dismissal of E. A. No. 162 of 1972 was only for statistical purposes and the filing of the subsequent E. A. No. 35/74 was only a revival of the earlier petition. He further submitted that I. A.151/73 was filed by the auction purchaser in the District Munsif's Court. Kavali and the respondents in the present appeal were added as respondents 5 to 9 (Legal Representatives of Veeraraghavareddy) and the Court ordered that petition on 17-8-1973. Therefore, once I. A. 151/73 was allowed it would only mean that the consequential order of the District Munsif, Kovur in E A. 162/72 has automatically been set aside and E. A. No. 162/72 was served and therefore it should be considered that E. A. No. 162/72 was pending at the time when the Civil Procedure Code Amending Act was passed and therefore this petition E. A. No. 35/74 can not be and should not be considered to be a fresh application but was only an application for the revival of E. A. 162/72 and it should be treated that this was an application to remind the Court of the existence of E. A. 162/172.
On the other hand Mr. Dasaratharamireddy learned advocate appearing on behalf of the respondents strenuously contended that admittedly three days before the sale took place, Veeraraghavareddy died and his legal representatives were not brought on record and that Veeraraghavareddy alone was in possession od the entire estate at Venkamma and therefore it was incumbent on the part of the auction-purchaser to tile an application to bring the legal representatives of Veeraraghavareddy on record before the auction took place, and since no application was filed before the auction took place, the sale held was void. The learned advocate for the respondents further argued that even it the sale is held to be valid, then the auction purchaser would have to show that this petition E. A. No. 35/74 which was filed under O 21, R. 95 of the Civil P. C, for delivery of possession is within limitation as provided under Art. 194 of the New Limitation Act.
3. After giving a careful thought to the contentions advanced by the learned advocates, I am of the opinion that having regard to the circumstances of this case, the contention advanced by Mr. Ramasarma has to prevail. It is to be noted that notice under 21, Rule 88 was served on Veeraraghavareddy on 2-1-1971 and on the other judgment-debtors on 23-11-1970 and 24--8- 71. In spits of service of the notices on these legal representatives of Venkamma, no objection whatsoever was taken with regard to the holding of the auction. Consequently the Court fixed the date of auction as 10-1-1972 but it so happened that Veeraraghavareddy died on 7-1-1972, i e. three days prior to the auction and this auction was confirmed on 15-2-1972. Even after confirmation at auction, no objection whatsoever was taken by the other legal representatives of Venkamma. So much so, the auction-purchaser had to move the Court through E. A. 162 and 163/72 as by then the auction-purchaser knew of the death of Veeraraghavareddy.
Even in answer to E . 163/72 no allegation whatsoever was made by the legal representatives of Veeraraghavareddy that Veeraraghavareddy was in sole possession of the estate of Venkamma and that after his death they were in sole possession of the estate of Venkamma and therefore in these circumstances it was incumbent upon the auction-purchaser to bring them on record as legal representatives of Veeraraghavareddy. It is for the first time this aspect of the matter was raised by the legal representatives of Veeraraghavareddy in their stay petition in the lower Appellate Court and that war met by filing a counter-affidavit. When such in the position, it cannot be said that it was the duty of the auction-purchase, to malts enquiry as to who is in possession of the property and to make him only a party to the proceedings and in care be dies bring his legal representatives on record before the auction was held.
It is to be noted that what me auction purchaser has done in this case during the pendency of me original suit when Venkamma defendant died, he made her brothers and sisters as the legal representatives against whom the decree was passed Therefore, if really Veeraraghavareddy was in sole possession of the property, he could have approached the Court an the receipt of the notice under O. 21. R. 66, C. P. C. which he has failed to do. Even at the time of the argument in me Executing Court, the Legal representatives did not at all argue that Veeraraghavareddy was in sole possession of the estate of Venkamma. Nor was it raised in the Memorandum of grounds of first appeal filed by the legal representatives of the deceased Veeraghavareddy. It was only for the first time as pointed out above, a stray mention was made that they were in sole possession of the estate of Venkamma, in the stay petition.
In these circumstances it cannot be expected of the auction-purchaser to say that Veeraraghavareddy was in sole possession of the estate of Venkamma or lead evidence to the effect that all the four sons and daughters were in joint possession of the estate of Venkamma. The brothers and sisters of Venkamma were already brought on record as the legal representatives of Venkamma even during the pendency of the suit and even at that time Veeraraghavareddy could have filed a petition to say that be was in sole possession of the estate of Venkamma which he did not do In these circumstances, it cannot be said that There is no effective representation on the contrary I am of the view that the plaintiff in the original suit has brought all the sons and daughters of Venkamma as her legal representatives and a decree was passed against them and while chat decree was being executed it was the auction purchaser who had purchased this property.
Therefore, to my mind the estate of Venkamma we, sufficiently represented by Ramachandrareddy, Venkatasubbamma and Annapurnamma. If in spite of service of notice under O. 21, R. 66, C. P. C. those Legal Representatives did not appear in the Court, It cannot be Said that there was no effective representation, because the decree holder has done what all he has to do and had got the notice under O. 21, R. 66, C. P. C. issued and served upon them. It this position is accepted, it cannot be said that the estate of Venkamma was not sufficiently represented. Hence I hold that the estate of Venkamma was sufficiently represented at the time when the auction took place, in spite of the fact that one of the Legal representatives of Venkamma, viz., Veeraraghavareddy died three days prior to the auction. Since estate of Venkamma was sufficiently represented, the sale Would be considered to be valid.
4. Yet from another aspect it is to be noted that the auction purchaser had tiled E. A. 163/72 for bringing the legal representatives of Veeraraghavareddy on record. He also filed E. A. No. 162/72 for delivery of Possession of property. There two petitions were filed in District Munsifs Court, Kovur, but the District Munsif, Kovur dismissed E. A. 163/72 on the ground that such a petition should be filed in the transferor Court. Having dismissed E.A. No. 163/72, the District Munsif''s, kovur by a consequential order dismissed E A. 162/72, whereafter the auction-purchaser filed I. A. 151/73 in the District Munsif's Court, Kavali and this I. A, 151/73 was ordered on 17-8-73. To my mind, since E. A. 162/72 was dismissed by way of consequential order as E. A. 163/72 was dismissed, therefore the allowing of I. A. 151/73 would automatically review E. A. 162/72. When such is the position it would be noticed that E. A. 162/72 was alive and in existence when the Code of Civil Procedure (Amendment) Act, 1978 was passed. S. 72 of' that Act deals with certain amendments to O. 21. C1. (ix) provides for the insertion of R. 22A to O. 21 after R.22. It provides:
'Where any properly is sold in execution of a decree, the sale shall not be set aside merely by reason of the death of the judgment-debtor between the date of issue of the proclamation of sale and the date of the sale notwithstanding the failure of the decree-holder to substitute the legal representative of such deceased judgment-debtor, but in case of such failure, the Court may set aside the sale if it is satisfied that the legal representative of the deceased judgment debtor has been prejudiced by the sale.'
The question arises whether O. 21, R. 22A is retrospective in effect, or not. For this it is necessary to look into the provisions of S. 97 of the (Amendment) Act of the C. P. C. It provides that any amendment made, or any provision inserted in the principal Act by a State Legislature or a High Court be fore the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. To my mind sub-sec. (1) of S. 97 has no application. Sub-sec. (2) provides:
Notwithstanding that the provisions of that ,Act have come into force or the repeal under sub-sec. (1) has taken effect, and without prejudice to the generality of the provisions of S. 8 of the General Clauses Act, 1897,--
(a) to (p) xx xx xx xx (q) the provisions of Rr. 31, 32, 48A, 57 to 59, 90 and 97 to 103 of O. XXI of the First Sch. as amended or, as the case may be, substituted or inserted by S. 72 of this Act shall not apply tom affect.............'
One of the three conditions mentioned thereunder. However sub-sec. (9) of S. 97 provides that:
'Save as otherwise provided in sub-sec. (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application pending at the commencement of this Act or instituted or filed after such commencement, notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceedings, appeal or application is instituted or filed, bad bean acquired or bad accrued before such commencement.'
It would thus be seen that having regard to the provisions of S. 97, O. XXI R. 27A has been given retrospective effect so far as sales are concerned because, the delivery of possession which is under O. XXI R. 95 of the C. P. C. Is not envisaged under S. 97 subsec. (2) C1. (q) As such having regard to the provisions of sub-sec. (3) of S. 97, O. 2,1 R. 22-A would have retrospective effect. But the question remains as to whether O. XXI, R. 22 if read in conjunction with S. 97, would apply to the proceedings which have already been dismissed. Obviously it cannot apply to the proceedings which have already been dismissed. But however, as I have already pointed out above, E. A. 163/72 which was to bring the legal representatives of Veeraraghavareddy on record was dismissed by the District Munsif's Court Kovur and as a consequential order E. A. 162/72 for delivery of possession was also dismissed.
E. A. 183/72 was dismissed because the District Munsifs Court, Kovur, was of the opinion that being a transferee Court at that time, a had no jurisdiction to pass any order on E. A. 185/72. It therefore directed the auction purchaser to file a petition to bring the legal representatives of Veeraraghavareddy on record before the District Munsif's Court, Kavali which the auction-purchaser did by filing I. A. No. 151/73. It was allowed on 17-8-75. Since E. A. 162/72 was dismissed by way of a consequential order, therefore to my mind, the very allowing of I. A. 151/73 on 17-8-1973 would automatically revive E. A. 162/72. When the Amendment of the C. P. C. came into force on 1-2-1977, E.A. 162/72 had revived and what E.A. 35/74 in effect is that it is only reminder to the Court of the existence of E. A. 162/72 and therefore it cannot be considered that E. A. 35/74 is a fresh application. I am supported in my view by the judgment of Madras High Court in Abdul Aziz v. Chokkan AIR 1935 Mad 803 (FB). and U. Ramakrishna Mudali v. Sivarama Prasad AIR 1957 Andh Pra 73.
That apart, to my mind E. A. 162/72 is automatically revived when I.A. 151/73 is allowed is reinforced by the fact that where an appeal is filed beyond limitation, it is always accompanied by a petition under Section 5 of the Limitation Act to condone the delay in filing the appeal if the Court dismissed that petition under S. 5 of the Limited Son Act invariably, a revision is preferred to the High Court against the older of dismissal of the interlocutory application under S. 5 of the Limitation Act and if the C. R. P. is allowed by the High Court, it automatically revives the appeal which has been dismissed by the lower Court on the ground of the appeal being filed beyond limitation. Therefore, a flesh application is not necessary to file the appeal. The same principle 1 to my mind could be applied in a case at this nature, viz., that when E. A. 162/72 was dismissed by way of a consequential order, the allowing of I. A. 151/73 for bringing the Legal representatives of deceased Veeraraghavareddy on record would be sufficient to revive E. A. 162/72 and the filing of E. A 35/74 would only serve the purpose of reminding the Court of the existence of E. A. 162/72.
5. Therefore, I allow this appeal with costs and set aside the order of the lower appellate Court and confirm the order of the trial Court. C. M. P. No. 9839/78 is allowed.
6. Appeal allowed.