1. This is an appeal brought by the plaintiffs against an appellate decree of the Additional District Judge, Amritsar, confirming the decree of the trial Court dismissing the plaintiff's suit for possession.
2. The facts of the case are that Shankar Singh, tile father of the plaintiffs; contracted several debts and one of them was due to Hem Raj. defendant 1. On 29-3-1934 Hem Raj obtained an ex parte decree for Rs. 800/- against Shankar Singh and in execution of his decree the land in dispute was sold for RS. 1,000/- on 4-10-1937 subject to a mortgage of Rs. 2,100/-.
The sale certificate was obtained on 14-1-1938 and the present suit was brought alleging that the original debt on the basis of which the ex parte decree was obtained was without consideration and legal necessity and was not binding upon the plaintiffs. It was also alleged that as a matter of fact no debt was due and the decree was obtained by fraud and the sole was vitiated by the fact that it was sold for a low price, and Saht Ram defendant 2 who was a member of the joint family with Hem Raj and purchased it without the Court's permission.
The defendants denied the correctness of the allegations and pleaded limitation as a bar which plea was sustained by both the Courts below, and that is the only point now before me.
3. According to the Courts below the suit is governed by Article 12(a), Limitation Act which funs as under:
'12. To set aside any One yearof the following sales : When the sale is(a) sale in execution of a confirmed, or woulddecree of a Civil Court; otherwise have become final and conclusive had no suchsuit been brought'.
4. In order to succeed the plaintiffs must show that the sale was void and therefore Article 12(a) is not applicable. The parties are Hindus and governed by Hindu law, and the law in regard to sales in execution of decrees against the father has been laid down by Mulla at p. 368 of Hindu Law.
Relying on two judgments of their Lordships of the Privy Counoil in -- 'Suraj Bunsi Koer v. Sheo Proshad', 5 Cal 148 at p. 171 (A), and -- 'Mt. Nanomi Babuasin v. Modhun Molun'. 13 Cal 21 (B), the law has been stated to be that where joint ancestral property has passed out of a joint family under a sale in execution of a decree for the father's debts his sons, by reason of their pious duty to pay their father's debts cannot recover that property, unless they show that the debts were contracted for immoral purposes, and also that the purchaser had notice that the debts were so contracted.
The principle that the sons cannot set up their rights against their father's alienation for an antecedent debt if not tainted with immorality is now an established rule of Hindu law. At page 375 of Mulla's Hindu Law the position has been stated in the following words :
'The position, then, is that where joint family property is sold in execution of a decree against the father then if the purchaser is the decree-holder himself, the sons are entitled to recover their interest merely by proof of the immorality or non-existence of the debt. But if the purchaser is a stranger to the suit, they cannot recover their share unless they prove that the debt was contracted for an immoral or illegal purpose, and also that the purchaser had notice that it was so contracted.'
Thus, according to the law as laid down by the Privy Council and as stated by Mulla, to entitle a son to have a court sale in execution of a decree against the father set aside it has to be shown that the debt was tainted with immorality or as a matter of fact it did not exist. In either case the sale is unassailable till these: two facts or either of them are proved, and therefore the sale, according to this view, is a voidable one and not a void sale.
5. Mr. Grover has relied upon a judgment of the Madras High Court in -- 'Lakahmadu v. Ranmdu', AIR 1939 Mad 867 (C), where at p. 875 the law is stated to be that where sons are not represented by their father in a suit and therefore the objection to the validity of the mortgage could not be and was not entertained by the Court the decree and the sale could not be held to be binding on them and the following words are then used:
'The sale being thus void, it was unnecessary for them to sue for setting it aside.'
6. This, seems to go counter to the view taken by the Privy Council and by the large number of cases which have been decided in Indian Courts. As a matter of fact, in Madras itself a different view was taken in -- 'Narayana Naicken v. Ven-kataswami Naicken', AIR 1926 Mad 1190 (D), There a suit was brought by a son within three years of his attaining majority to avoid the sale effected by his father, and Article 12(a) was held to be applicable.
The same view was taken in -- 'Bhola Jha v. Kali Prasad', AIR 1917 Pat 693 (E). I am therefore of the opinion that a sale in execution of a decree against the father passes the interests of the son also and the sale in such a case is not void but is only voidable if immorality of the debt or the non-existence of it is shown.
7. The language of Article 12(a) is quite clear. It was interpreted by the Privy Council in -- 'Mal-karjun v. Narhari', 25 Bom 337 (F). In that case the mortgaged property was sold at a judicial sale in execution of the decree.
The plaintiffs as heirs of the mortgagor brought a suit to have it set aside On the ground that the sale took place after notice had been wrongly served upon a person who was not the legal representative of the judgment-debtor's estate, and that the executing Court had erroneously decided that he was to be so treated, and it was held that the judicial sale was not a nullity and could not be treated as invalid, notwithstanding these irregularities. At page 352 Lord Hobhouse observed:
'The Limitation Act protects bona fide purchasers at judicial sales by providing a short limit of time within which suits may be brought to set them aside. If the protection is to be confined to suits which seek no other relief than a declaration that the sale ought to be set aside, and is to vanish directly some other relief consequential on the annulment of the sale is sought, the protection is exceedingly small.'
and at a previous place at page 351 his Lordship said:
'Article 12(a), Limitation Act of 1877 provides that a suit to set aside a save in execution of a decree must be brought within one year after the sale is confirmed. That seems precisely applicable to the present case. It is said by Candy J. (with whom Jardine J. agrees) that it had not been contended that the plaintiffs were bound to sue within the year: and he refers to a text-book for cases to show that the article does not apply to a suit for a declaration that the sale is inoperative as against the plaintiff. Here the sale is, as their Lordships hold, and as the learned Judge himself assumes, operative as against the plaiatiffs though liable to be set aside for due cause.'
8. In the words of their Lordships 'if the sale is a reality at all it is a reality defeasible only in the way pointed out by law; and it seems to their Lordships that the case must fall either within Section 311 of the Code (Order 21, Rule 90) or, within Article 12(a), Limitation Act or within both; anyway, there exists a bar by one year's delay', This judgment has been the subject-matter of interpretation by Indian Courts and it has consistently been held that the sale in execution of a decree can be set aside only in these two ways and none other, and after the kpse of one year the sale becomes immune from attack.
9. In -- 'Mohammad Baksh v. Allah Din', AIR 1942 Oudh 33 (G), Article 12(a) was applied to the case of a mortgage. It was also said that if the alienation is voidable at the option of the sous the sale is good and the sons are bound to get the sale set aside if they want to recover their share of the property. The Privy Council in -- 'Hadha Krishna v. Bisheshar Sahay', AIR 1922 PC 336 (H), held that Article 12 (a) is applicable to suits to set aside sales even where a decree-holder purchases without permission as the sale is voidable and not void.
10. Mr. Grover then summits that the sale must be taken to be void because he in his pleadings bad raised the question of fraud. No particulars of the fraud are given. All that is stated is that there was no debt in existence that an ex parte decree was obtained and that the sale was for an inadequate price and the purchaser belonged to a coparcenary along with the decree-holder.
These are hardly grounds which will make thesale void and not voidable, but in any case in thecircumstances of this case in my opinion the Courtshave rightly held that Article 12(a) applies and the suitis barred by time. I would therefore dismiss thisappeal with coals.