1. Plaintiff is the appellant.
2. The plaint schedule property belonged to one Narayana Pillai, having been allotted to him in partition of his tarwad. It was then outstanding on a possessory mortgage. Narayana Pillai executed a hypothecation in respect of the equity of redemption which was put in action culminating in a court-sale in O. S. No. 47 of 1109 on the file of the District Munsitf of Trivandrum. Pending execution, hut before the court-sale, Narayana Pillai died; and Janki Amma, who was alleged to be his widow, was impleaded as his legal representative. The execution sale was held with her as his sole legal representative. The property was taken delivery of by the plaintiff, but on an application by the mortgagee it was redelivered to the latter. Plaintiff has therefore instituted this suit for redeeming the mortgage.
The defendant contended that, subsequent to the decree in O. S. No. 47 of 1109, Narayana Pillai had sold the property to him 'whereupon he redeemed the mortgage and entered possession of the suit property, that Janaki Amma was not the widow and therefore not legal representative of Narayana Pillai, and that for want of representation of the estate the court-saleconveyed no interest in the suit property to the plaintiff.
The Munsiff held the court-sale valid and decreed the suit but the Subordinate Judge, on appeal, reversed the same, finding that the legal representatives of Narayana Pillai were his two daughters, that Janki Amma was not his widow, and that therefore the court-sale was void for want of representation of the estate. Hence this Second Appeal.
3. As regards the status of Janki Amma, there is no evidence to prove that she was the widow of Narayana Pillai, the judgment-debtor and therefore an heir to him. Plaintiff, as P. W. 1 in the case, disowned knowledge of her relation with Narayana Pillai as he was 'a stranger' to the locality, though he had seen them living together. nO other evidence was adduced by the plaintiff. On the other hand the defendant has sworn, as D. W. 2, that he had all along been a neighbour to Narayana Pillai who had married Lakshmi Amma through whom he had two daughters, and that she died long be-fore the court-sale and that Narayana Pillai never remarried. One of the daughters of Narayana Pillai has been examined in this case as D. W- 1. She had also sworn that she was never aware of her father having contracted a second marriage. Such being the evidence, the finding of the court below that Janki Amma wasnot the widow of Narayana Pillai, the judgment-debtor in O. S. No. 47 of 1109, has only to be accepted.
4. Counsel for the plaintiff contended that, even if Janaki Amma was not the real heir or legal representative of Narayana Pillai, still thecourt-sale, not having been set aside so far by his legal heirs, has to be accepted as valid. Reliance was placed on the ruling of the Privy Council in Malkarjun v. Narhari, 27 Ind App 216 (PC). In that case Vithal who obtained 'a simple decree for payment of money' against Nagappa applied for execution after the latter's death. The name of the person against whom execution was sought was given as 'the estate of the deceased Nagappa' and the name of the party was given as 'Nagappa, deceased, by his heir Ramlingappa'. Ramlingappa was the sonof a separate brother and therefore not the heir of Nagappa and had none of the properties of Nagappa with him. He apprised the court the facts and pointed out the legal heirs of Nagappa as his two daughters. The court however ordered: 'The plaintiffs' application for execution is not against other property; it is against the 'estate' of the deceased. If property belonging to you is included in that, you should take legal steps after the attachment is levied.' After that the execution proceedings went On; the equity of redemption of a property that belonged to Nagappa was put to auction and the mortgagee purchased the same for Rs. 65--cdd. Subsequently, the heirs of Nagappa instituted the suit for redeeming the mortgage, ignoring the court-sale to which they were not parties as not binding on them, and the defendant, contended that the plaintiffs had lost their right to redeem by the court-sale which has not been set aside within the time allowed by law. The High Court of Bombay allowed redemption and the defendant took the matter before the Privy Council. The plaintiffs however did not enter appearance before the Judicial Committee and their Lordships did 'feel the disadvantage of being without a respondent' and happened to overlook certain aspects which were very material in the case. The matter appears to have been presented in such a way that their Lordships of the Judicial Committee considered only the power of the court to carry on the proceedings in execution, but not 'the consequences of defects in the institution of the proceedings themselves. Their Lordships observed:
'The court had jurisdiction to receive such application ...... . If there had been a disputewho was heir or whether the property had or had not devolved upon the heir, it was for the court to determine such matters ...... . .It didissue notice to Ramlingappa. He contended that he was not the right person, but the court, having received his protest, decided that he was the right person and so proceeded with the execution. In doing so the court was exercising its jurisdiction. It made a sad mistake it is true; but a court has jurisdiction to decide wrong as well as right. .... .Acting in its duty to make theestate of Nagappa available for payment of his debt, it served with notice a person who did not legally represent the estate, and on objection decided that he did represent it. But to treat such an error as destroying the jurisdiction of the court is calculated to introduce great confusion into the administration of the law.' and, in that view, concluded that the court-sale was only irregular which, not having been set aside within one year of its confirmation as prescribed by Article 12 of the Limitation Act, became unimpeachable. Their Lordships, may I be forgiven for saying so, failed to note that any decision without notice to the person affected thereby is incapable of binding him or his rights, that a proceeding against property without the person, in whom it is vested, on record cannot affect that property, that under Section 50 C. P. C.. where a judgment-debtor dies before the decree has been fully satisfied (or 'fully executed' as the expression was in the Code of Civil Procedure, 1877), the holder of the decree may apply to the court which passed it to execute the same against 'the legal representative of the deceased,' and not against 'the estate of the deceased judgment-debtor,' and that, if proceedings taken deliberately behind the back of a party are to deprive the party of his rights, it would create the greatest insecurity in judicial proceedings and absolute hatred for the administration of justice. If the dictum in 27 Ind App 216 (PC) be followed strictly, I am afraid, fraud and collusion may reign supreme in the process of court.
5. Their Lordships of the Judicial Committee have themselves held in another connection, in Khiarajmal v. Daim, 32 Ind App 23 (PC):
'The Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullify and might be disregarded without any proceeding to set them aside '
Even in 27 bid APP 216 (PC), (see at 226), their Lordships approved the dictum in Baswantappa v. Ranu, ILR 9 Bom 86 where 'the creditor of a man who was dead sued his mother in the character of hear, whereas the real heir of the debtor was his widow .....obtained a decree . . . upon which execution took place, and the debtor's property was transferred to the defendant,' the sale was 'a nullity.' To me it appears that, stage after stage, the case of 27 Ind App 216 (PC) proceeded on 'sad mistake'; and the correct law is as laid down by their Lordships in 32 Ind App 23 (PC).
6. The Code of Civil Procedure seems to make a distinction between the court's power to entertain proceedings in execution and the operative effect of the proceedings themselves. Order 21 Rules 91 and 92 read:
'91. The purchaser at any such execution of a decree may apply to the Court to set aside the sale, on the ground that the judgment-debtor had no saleable interest in the property sold.
'92. (1) Where no application is made under Rule 89, Rule 90, or Rule 91, or where such application is made and disallowed, the Court shall make an order confirming the sale, and thereupon the sale shall became absolute.
(2) Where such application is made and allowed, and where, in the case of an application under Rule 89, the deposit required by that rule is made within thirty days from the date of the sale, (and in case where the amount deposited has become deficient owing to any cause not within the control of the depositor such deficiency has been made good within such time as may be fixed by the Court) the Court shall make an order setting aside the sate
Provided that no order shall be made unless notice of the application has been given to all persons affected thereby.
(3) No suit to set aside an order made under this rule shall be brought by any person against whom such order is made.' These rules indicate that the executing court may, at the instance of the decree-holder, sell a property in which the judgment-debtor has no saleable interest at all; and still, after the period of limitation prescribed by Article 166 of the Limitation Act, the executing court will not set aside or annul the sale; and a person who was a party to the sale proceedings cannot be heard to challenge the sale even in a fresh suit by him. Yet, it is well known that a court-sale conveys only 'the right, title and interest' of the judgment-debtor to the purchaser and if the former has no saleable interest the sale can only be a nullity. It is never held that, though the judgment-debtor bad no saleable interest, thesale would bind the real owner because it was a sale by court, or because at the instance of the decree-holder the court has found the property to be judgment-debtor's and thereupon proceeded to sell the same. The real owner of the property who was no party to the execution proceedings cannot be bound by the court-sale and he can treat the sale as mere nullity.
7. Nor can there be such a thing as, proceeding against 'the estate of the deceased. Narayana Pillai'. In Continental Jurisprudence which recognises the estates of deceased persons as legal persona, following the Roman example of Hereditas Jacens, a proceeding against the deceased's estate as such may be possible, but not in States which follow the English Jurisprudence which does not personify funds and estates.
8. On the death of Narayana Pillai, the property, by operation of law, became vested in his legal heirs being his daughters. Janaki Amma, who was not one of his heirs, did not get any right or interest therein. A proceeding had against Janaki Amma, behind the back of the real heirs or the legal representatives of Narayana Pillai, cannot therefore bind the Property concerned.
9. The plaintiff cannot be heard to say that he did not know who the heir of Narayana Pillai was. Heirs are fixed by law; and everybody is conclusively presumed to know the law. Whether a particular class of heirs exists in a particular case or not can easily be ascertained on enquiry. Proclamations of sale are published at least thirty days before the sale, and a further period of thirty days is allowed for making an application to set aside the sale before it is confirmed, and the purpose can only be for persons concerned to make the necessary enquiries regarding the title and nature of the property they are purchasing at the court-auction. Rule 91 of Order 21 C. P. C is proof positive that the court does not guarantee anything to the auction-purchaser.
10. The ruling in 27 Ind App 216 (PC) did not advert to the above aspects. I am happy that this case has arisen in a jurisdiction which was not bound by the precedents of the Judicial Committee, even though the maximum respect is invariably paid even to the obiter dicta of their Lordships.
It is pertinent to note that the dictum in 27 Ind App 216 (PC) came up for consideration be-fore the Privy Council in 32 Ind App 23 (PC) and their Lordships then observed:
'The appellants relied on the judgment of this Board in 27 Ind App 216 (PC). In that case a judgment had been given against a debtor, who afterwards died, and in executing the decree against his estate a person was served, as his heir, with notice of the intended sale. The person served objected (as it was proved rightly) that he was not the heir of the deceased, hut the court over-ruled the objection. The purchaser at the sale was a stranger, and not the judgment-creditor. It was to this state of circumstances that Lord Hobhouse's observations were directed.'
This limitation placed on the scope of that ruling clearly indicates, in my opinion that thePrivy Council, constrained by its own tradition not to overrule or dissent from its earlier decisions, was not prepared to give the dictum in 27 Ind App 216 (PC) its full operation. With all my admiration and respect for their eminent Lordships, I am unable to reconcile myself with the dictum in 27 Ind App 216 (PC) and feel constrained, to hold that the court-sale held without the real legal representatives of Narayana Pillai on record cannot affect the estate that was vested in them on his death or convey any right therein to the auction-purchaser. The decree of the court below is therefore affirmed.
11. In the result, the Second Appeal failsand is dismissed with costs.