Jagat Narayan, J.
1. These are two connected appeals arising out of an execution proceeding. The facts which have given rise to them are these :
Manak Mal respondent No. 1 obtained a simple money decree for Rs. 23,999/- on 8-5-1939 against Askaransingh and his yon Kansingh. This decree was put into execution several times and some amount was realised. Ultimately the decree-holder and the judgment-debtors entered into a compromise on 12-2-1944. A sum of Rs. 8,000/- was paid in cash and balance of Rs. 9,500/- remaining unrealised was ordered to be paid in 10 yearly instalments beginning from Chait Sud 15th, Smt. 2001.
The first nine instalments were to be of Rs. 1,000/- each and the last instalment of Rs. 500/-. If the instalments were paid regularly on the due dates, then no interest was payable. But if there was any default in the payment of any instalment, then the decree-holder was entitled to recover interest on it at 6 per cent per annum simple. The last instalment was to be paid on 18-4-1954 according to the English Calendar.
2. No payment was, however, made by the judgment-debtors voluntarily in accordance with the above compromise. The decree was put in execution to recover instalments again and again. A sum of Rs. 700/- was recovered on 24-3-47. Another execution application was filed on 5-3-48. A sum of Rs. 2,000/- was recovered on 22-8-49 and the application was dismissed on 26-8-1949.
3. The next execution application was filed on 8-11-1949. Both Askaransingh and Kansingh were alive at that time and it was filed against them. Then Kansingh died leaving Smt Moong Kanwar as his widow who was brought on record as the legal representative of Kansingh in the next execution application dated 2-8-1950. Another execution application was filed on 28-4-51 against Askaransingh and Kansingh's widow.
It was dismissed on 16-5-51 after realising Rs. 1,400/- on 15-5-51. Another execution application was made on 19-5-51 against Askaransingh and Kansingh's widow. A prayer was made to execute the decree by the sale of the Ijara of village Malwara of which Askaransingh was the Jagirdar. On 25-1-52, notices were issued to the judgment-debtors to show cause why the Ijara should not be sold in execution of the decree. These notices were served but no objection was filed.
On 22-3-52, the Court accordingly ordered the sale of the Ijara. Sale proclamation was issued and 10-5-52 was fixed for holding the sale. Before the Ijara could be sold, Askaransingh died on 6-4-52 and his Jagir was taken over by the Collector in the capacity of Manager, Court of Wards. On 26-7-52, the learned counsel for the decree-holder intimated to the Court that the Jagir of the judgment-debtors had been taken over by the Court of Wards.
4. On 24-1-53 fresh sale proclamation was issued for the sale of the Ijara in the names of Askaransingh and Kansingh's widow. As has been mentioned above, Ashkaransingh had already died on 6-4-52. The Ijara was sold by auction on 27-2-54 in favour of Bachraj respondent No. 2 for Rs. 2,131/-. The sale was confirmed on 15-5-54.
5. Before the sale had taken place, one Ambsingh filed an application on 30-5-53 on behalf of Balwantsingh and Dalpatsingh minors purporting to be their guardian. In this application it was alleged that an adoption case was going on and that Malwara was in the Zabti in that case with the Court of Wards and it was prayed that the sale be stayed. The Court sent a copy of this application to the collector, who had taken over the Jagir of Askaransingh deceased.
The Collector sent a reply saying that Askaransingh had died on 6-4-52, that there was a dispute with regard to the succession and that pending inquiry his Jagir had been taken over under the management of the Court of Wards and orders of the Government were awaited on the question of succession. The matter came up before the Court on 18-7-53. Several objections were raised on behalf of the decree-holder against granting the prayer made by Ambsingh on behalf of Balwantsingh and Dalpatsingh minors. The Court ultimately declined to stay the sale of the Ijara on 18-7-53.
6. On 19-8-54, the Collector, Jalore filed an application purporting to be the guardian of Balwantsingh and Dalpatsingh minors for setting aside the sale of the Ijara on various grounds. It was not mentioned in this application that Balwantsingh and Dalpatsingh claimed to be the legal representatives of Askaransingh. The auction purchaser filed a reply to this application on 16-10-54.
In this reply it was mentioned that a dispute about succeeding to Askaransingh's jagir was pending between Balwantsingh and Dalpatsingh on one side and Jaisingh on the other side and it could not be said until that matter was settled as to who was the legal representative of Askaransingh, It was contended that in view of this, Balwantsingh and Dalpatsingh could not be impleaded as legal representatives.
The decree-holder also filed a reply on the same date. The Collector filed a reply on 13-11-54 on behalf of Balwantsingh and Dalpatsingh. In this, it was mentioned for the first time that one Ratansingh was adopted by Kansingh's widow in the life time of Askaransingh by a registered adoption deed, that Ratansingh died and that Balwantsingh and Dalpatsingh minors were the sons of Ratansingh and, therefore, they were legal representatives of Askaransingh deceased.
It was not mentioned in this reply whether Government which was the sole authority to decide the dispute relating to succession under the Marwar Land Revenue Act, had given a decision as to who was the successor of Askaransingh. It is now admitted that this dispute had not been settled by them. It was settled on 7-12-56 by a notification appearing in the Rajasthan Gazette dated 10-1-1957. Balwantsingh and Dalpatsingh were recognised as the successors of Askaransingh by Government.
7. The application dated 19-8-54 purported to he under Order 21, Rule 19 and Section 151 of the Civil Procedure Code. The subsequent application by way of reply dated 13-11-54 purported to be also under Section 47, C.P.C. It was contended on behalf of the decree-holder before the executing Court that the application filed on behalf of Balwantsingh and Dalpatsingh setting aside the sale under Order 21, Rule 19 was barred by limitation, the period prescribed for such an application under Article 166 of the Limitation Act being 30 days from the date of the sale. The sale took place on 27-2-54. This contention prevailed and the application was accordingly dismissed on 6-4-55. Against this order, execution first appeal No. 7 of 1955 has been preferred.
8. Another execution application was made on 15-5-54. Kansingh's widow Smt. Moong Kanwar was impleaded in this application as the legal representative of Askaransingh and Kansingh. The Collector filed an objection on 11-9-1955 on behalf of Balwantsingh and Dalpatsingh that the execution application should be dismissed as the legal representatives of Askaransingh had not been impleaded.
It was alleged that Balwantsingh and Dalpatsingh were the legal representatives of Askaransingh. The decree-holder opposed this application on the ground that the matter of succession had not been decided by the Government till then. The Court ordered on 11-2-1956 that the Collector of Jalore be impleaded as the legal representative of the deceased judgment-debtor as he was in possession of their jagir.
After Government recognised Balwantsingh and Dalpatsingh as successors of Askaransingh, the decree-holder impleaded them as the legal representatives of the judgment-debtors on 15-2-57. On 8-7-57, the Collector filed another objection on behalf of the minors seeking to get the execution application dismissed on the ground that the legal representatives of Askaransingh had not been impleaded when it was filed and that it was barred by limitation. The executing Court overruled this objection on 9-1-58. Against that order, execution first appeal No. 6/1958 has been filed.
9. So far as S. B. Execution First Appeal No. 7 of 1955 is concerned, the learned counsel for the appellants conceded that it is infructuous. The ijara was sold by auction on 27-2-1954 for the next two agricultural years. The sale was confirmed on 15-5-1954. But before the next agricultural year commenced, the jagir was resumed by the State under the Rajasthan Jagirs Resumption Act.
The sale in favour of Bachraj, auction-purchaser thus became void by the operation of law. I accordingly dismiss this appeal. As it was filed after the sale had already become void, I direct the parties to bear their own costs. It may be mentioned here that Bachraj auction-purchaser, who was joined as respondent No. 1, to this appeal, did not appear to contest it.
10. Coming now to S. B., Civil Execution First Appeal No. 6 of 1958, the contention of the appellants is that the execution against them had become time-barred on the date on which they were impleaded.
11. In order to understand the respective contention of the parties in this behalf, it is necessary to state a law facts:
Askaransingh had only one son Kansingh. There was no other male member in the family. Kansingh died before Askaran Singh leaving a widow Shrimati Moong Kanwar. Kansingh did not leave any son or daughter. Shrimati Moong Kanwar was admittedly the legal representative of Kansingh being his widow. It is not disputed that execution application dated 19-5-1951 filed against Askaransingh and Shrimati Moong Kanwar was one in accordance with law.
Execution proceedings were started on this application. Before the proceedings were completed and before this application was dismissed, further instalments fell due and applications were made by the decree-holder on 25-6-1952 and 7-1-1954 praying for execution for the full amount found due on these dates. It was also prayed that these applications may be tagged on to the application dated 19-5-1951 on which execution proceedings were already going on.
Askaransingh had died in the meantime on 6-4-1952 and in the applications dated 25-6-1952 and 7-1-1954 Shrimati Moong Kanwar was impleaded as the legal representative of both Askaransingh and Kansingh. Askaransingh died without leaving any widow or son or daughter. Shrimati Moong Kanwar was the only member of the family who was left alive on the death of Askaransingh,
But for the adoption of the appellants' father (which took place on 26-6-1951, according to the copy of the registered adoption deed which has been filed) Shrimati Moong Kanwar would have been the legal representative of Askaransingh being the widow of a pre-deceased son. The order of succession amongst Hindus- in accordance with law, which was then in force was as follows :
(3) Great grandson.
(4A) Predeceased son's widow.
12. On 26-6-1951, Shrimati Moong Kanwar executed a registered adoption deed in which it was recited that she had adopted Ratansingh father of the present appellants. After the death of Askaransingh she executed another registered adoption deed on 14-4-1952 in which it was recited that she had adopted one Jaisingh. There was thus a dispute with regard to the adoption which under the provisions of the Marwar Land Revenue Act, only Government could decide. After the death of Askaransingh, his jagir was taken under the superintendence of the Court of Wards and the dispute with regard to the question of adoption was referred to Government for decision.
As has been mentioned above, this decision was arrived at only on 7-12-1956. Publicity was given to it by means of a notification which was published in the Rajasthan Gazette dated 10-1-1957. Section 15 of the Rajasthan Court of Wards Act, 1951, provides that when the Court of Wards assumes the superintendence of any estate, the order of assumption shall be notified in the Rajasthan Gazette.
This order was published for the first time in the Rajasthan Gazette on 14-1-1956. The notification under Section 17 of the Court of Wards Act was published in the gazette dated 10-1-1957. The date on which the Collector took possession of the jagir was shown as 12-2-1952 in this notification. There are clerical errors in the two notifications, but there is no doubt that they relate to this jagir.
13. It is not known when exactly Ratansingh died but he was dead before 30-5-1953 when Ambsingh filed an application on behalf of the applicants in the present execution proceedings.
14. The execution application filed on 19-5-1951 was dismissed on 15-5-1954. On the same date, a fresh execution application was moved in which Shrimati Moong Kanwar was impleaded as the legal representative of both the judgment-debtors. In this application, the Collector of Jalore was impleaded as legal representative of the judgment-debtors on 11-2-1956 as an inter-meddler with the estate of the deceased judgment-debtors. After the dispute about the succession was decided by Government, the present appellants were impleaded as legal representatives of the judgment-debtors on 15-2-1957.
15. The argument put forward on behalf of the appellants is that the execution application dated 19-5-1951 which was in accordance with law, became a nullity on 6-4-1952 on the death of Askaransingh as his legal representatives were not impleaded. It is also urged that the subsequent applications dated 25-6-1952, 7-1-1954 and 15-5-1954 were also null and void as Shrimati Moong Kanwar was impleaded as legal representative of the deceased judgment-debtors and the true legal representatives were not impleaded.
It was contended that the application dated 15-5-195:1 could only be considered to be an application in accordance with law within the meaning of Article 182 with effect from 11-2-1956 when the Collector of Jalore was impleaded as legal representative and that as more than three years had elapsed between 6-4-1952 when the execution application dated 19-5-1951 became a nullity and 11-2-1956 when there was an application for execution in accordance with law, the execution was barred by limitation. In support of his contention, the learned counsel for the appellants relied on Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib AIR 1936 Mad 205 (FB), in which it was held that:
'..... if execution of the decree is necessary against the legal representative of the deceased judgment-debtor the decree-holder has no option but to proceed under Section 50. He must apply to the Court to execute the decree against the legal representative as required by Order 21, Rule 22.
On the death of a judgment-debtor before an application for execution had been finally disposed of, the proper course for the decree-holder is either to present a fresh application for execution against the legal representative or to continue the existing execution petition by making the legal representative a party to it.
If the correct juristic principle is that the dead man is no person in the eye of the law and on the death of a judgment-debtor, the liability of paying his debts devolves on his legal representative whether on decree or otherwise, the court cannot regain jurisdiction which it has lost till the representative is impleaded and made the judgment-debtor and the property which became his cannot be sold and no right thereto would pass to the execution purchaser.'
16. The above decision is only an authority on the point that a sale held without impleading the legal representative of the deceased judgment-debtor is a nullity. It is no authority for the proposition that an execution application made against the estate of a deceased judgment-debtor impleading a wrong person as legal representative is a nullity. On the contrary, there is subsequent Division Bench authority of the same High Court, namely, S.A.R. Chinnan Chettiar v. The Estate Manager, Sivagana Estate, AIR 1949 Mad 348, in which Patanjali Sastri J., as he then was, delivering the judgment of the Court, held as follows :
'An application for execution presented against a deceased judgment-debtor owing to a bona fide mistake, though it could not be acted upon by the executing court, is an effective step-in-aid for the purpose of saving limitation. A mistake due to negligence but honestly made is a bona fide mistake.
'An execution application filed against a deceased judgment-debtor is not a nullity. There is only a mistake in giving the particulars required by Order 21, Rule 11 (2) and the defect can be remedied by an amendment under Order 21, Rule 17 (1). When so amended the application can be deemed under Rule 17 (2) to have been an application in accordance with law and presented on the date when it was first presented. When, therefore, an application is made against the deceased judgment-debtor within 12 years of the decree but the name of the legal representative is substituted by amendment after more than 12 years, the application is not barred under Section 48.'
17. The above case is a direct authority on the point that an execution application filed against the deceased judgment-debtor is not a nullity. It is only a defective application and the defect can be remedied by an amendment under Order XXI, Rule 17 (1) and when so amended, the application will be deemed under Rule 17 (2) to have been an application in accordance with law and presented on the date when it was first presented.
18. The application dated 15-5-1954, was, therefore, an effective step-in-aid for the purpose of saving limitation, even though a wrong person had been impleaded as legal representative of the deceased judgment-debtors. This was evidently done under a bona fide mistake. But for the adoption, Shrimati Moong Kanwar was the legal representative of her husband and father-in-law.
The decree-holder was no doubt aware of the fact that the Collector had taken over the jagir on behalf of the Court of Wards. Ambsingh, who filed an application on behalf of the appellants on 30-5-1953 as their next friend in the execution proceeding, did not disclose that their father Ratansingh had been adopted by Shrimati Moong Kanwar.
It was only when the Collector filed his application dated 19-8-1954 in these proceedings and the registered adoption deed was produced in Court that the decree-holder first came to know about this adoption. At that time there was a dispute over this adoption which Government alone was competent to decide. At that stage, the decree-holder could not implead the appellants as legal representatives of the deceased judgment-debtors.
It is true that the Collector could have been impleaded as legal representative. The decree-holder may be considered to be negligent in not impleading the Collector as the legal representative. But there can be no doubt that he bona fide believed that Shrimati Moong Kanwar was the only person, who could be impleaded as legal representative of the deceased judgment-debtors.
Ambsingh, the natural uncle of the appellants, in whose care and custody they were till the adoption of their father Ratansingh, was recognised by Government, was fully aware of the present execution proceedings, which were going on against the estate of Askaransingh and Kansingh. He filed an application on 30-5-1953. The decree-holder disclosed to the court as early as 26-7-1952 that the jagir of Askaransingh had been taken over by the Court of Wards. It did not strike either learned counsel for the decree-holder or the court that the Collector should be impleaded as legal representative.
The application of Ambsingh dated 30-5-1953 was however sent by the court to the Collector for a report on the allegations made in it. The Collector was also fully aware of the execution proceedings with effect from the date when he received this application. It is thus clear that the conduct of the decree-holder in this matter was bona fide. No attempt was made to conceal the execution proceedings from any one or to withhold any fact from the knowledge of the executing court.
19. When the application dated 15-5-1954 was amended, the amendment had effect from the date of the presentation of the application under Order XXI Rule 17 (3). There was thus an application in accordance with law on 15-5-1954. The earlier application dated 19-5-1954 was admittedly in accordance with law. The present application was filed within three years of the earlier application. The present execution is therefore within limitation.
20. I accordingly confirm the order of the court below and dismiss the appeal with costs.