Chandrasekhara Aiyar, J.
1. In execution of a decree obtained on foot of a promissory note executed by the second defendant in favour of the first defendant who is the appellant in this second appeal he purchased the suit properties. The promissory note was for the interest due under the mortgage deed executed by the second defendant in favour of the first defendant in the year 1931. The plaintiffs, who are the two sons of the second defendant, have brought the present suit seven years after the purchase by the first defendant, for the redemption of their 2/3rd share in the mortgaged properties, alleging that the sale in execution of the small cause decree obtained on foot of the promissory note is not binding against their interests in the properties, because the provisions of Order XXXIV, Rule 14, Civil Procedure Code were violated They also claim an account from the first defendant of the mesne profits received by him from the date when he got into possession of the properties under the sale and want that the amount for which he may be found liable in this respect should be set off against the amount due by them under the mortgage.
2. The District Munsiff held that the sale was in contravention of Order XXXIV Rule 14, Civil Procedure Code, as the promissory note on which the small cause decree was obtained was for interest due under the mortgage and that the plaintiffs were not bound by such sale. He further held that the first defendant was liable to account for the mesne profits since the date of his obtaining possession of the properties under the Court auction sale. He found that under the sale in exe caution only the father's 1/3rd share was sold. On appeal by the first defendant' the Subordinate Judge of Mayavaram concurred with the District Munsiff in the findings about the violation of Order XXXIV, Rule 14 Civil Procedure Code and the accountably. He however held that what the first defendant purchased was not merely the 1/3rd share of the father but the entire hypotheca.
3. For the appellant, the point has now been taken for the first time in second appeal that the suit is barred under Article 12(a) of the Limitation Act as it has been instituted more than one year after the execution sale in Small Cause Suit No. 411 of 1935. This contention naturally raises the question whether the sale is one that requires to be set aside by the present plaintiffs. Whatever the previous view was as regards sales held in contravention of the prohibition enunciated in Order XXXIV, Rule 14, Civil Procedure Code, (old Section 99, T. P. Act) it is now settled law that such a sale is not void but only voidable and is good until it is set aside. It is really unnecessary to cite authorities in support of this position. If the sale is not a nullity, it requires to be set aside by persons who would otherwise be affected by the sale. It is not alleged that the mortgage created by the father was not binding on the sons; for such a debt due by the father, the interest of the sons also in the joint family property can be brought to sale. In a decree obtained against the father alone, the sons' interest can be proceeded against. As stated already, the finding now is that the entire hypotheca was sold and not merely the father's share of the same. The violation of the provision in Order XXXIV Rule 14, Civil Procedure Code confers on the person affected only a right to have the sale set aside either by way of application or by way of suit, if a suit is permissible. But the application or the suit should be filed within the time provided by the law.
4. The decision of Sundaram Chetty, J., in Chinnakannu Padayachi v. Paramasiva Mudaliar : AIR1927Mad1135 and of the Full Bench in Lal Bahadur Singh v. Abharan Singh I.L.R.(1915)All. 165 are clear authorities, holding that the sons and grandsons in circumstances similar to those in the present case, where a sale was held in contravention of Order XXXIV, Rule 14, Civil Procedure Code (old Section 99 of the Transfer of Property Act), are bound by the sale if it is not set aside. Banerji, J., after discussing the question whether the sale is void, and after coming to the conclusion that it is only voidable, enunciates the proposition thus:
If that is so, and if such a sale is only voidable it not having been avoided before confirmation the title of the mortgagor or of those whom he represents, or of those who derive title from him passes absolutely to the purchaser and no right remains in those persons by virtue of which they can claim redemption.
There can be no doubt that the second defendant, who is the father, did represent his sons, the plaintiffs, in the prior proceedings. Narqyana Naicken v. Venkatasami Naicken : AIR1926Mad1190 deals directly with the question now before us and holds that such a suit at the instance of the sons brought after one year from the confirmation of sale is barred under Article 12 of the Limitation Act. To the same effect is the decision of the Patna High Court in Bhola Jha v. Lala Kali Prasad (1916) 1 Pat. L.J. 180. The fact that the plaintiffs were not eo nomine parties to the suit is of no consequence. As stated already, the father was there and he could represent their interest and the decree obtained against him for a debt binding against the sons could be executed against the sons' shares also. When the entire hypotheca thus passed out of the family by reason of the sale, and the sale has stood all these years without being impeached by the sons within the time prescribed by law, there is no longer any subsisting right in them to redeem the mortgage, which has become converted, so to say, into a sale. That a suit for redemption cannot be maintained without first getting the sale set aside was laid down in Uttam Chandra Daw v. Rajkrishna Dalai I.L.R. (1919)Cal. 377 It was held by the Privy Council in Ganpat Lal v. Bindbasini Prashad Narayan Singh (1920) 39 M.L.J. 108 : L.R. 47 IndAp 91 : I.L.R. 47 Cal. 924 that even in a case where the sons of the mortgagor were minors at the time of the suit on the mortgage and were not properly represented by a guardian, the right of redemption had become extinguished by the decree that was obtained on foot of the mortgage against the mortgagor and his two brothers. The sale extinguished the father's right of redemption and, in so doing, extinguished their own, and unless the sale was set aside, they could not redeem.
5. The learned Subordinate Judge relied upon the Full Bench decision in Muthuraman Chetti v. Ettappasam (1899) 9 M.L.J. 113: I.L.R. 22 Mad. 372 as affording a complete answer to the contention that the sons cannot impugn the sale and he pointed out that the sons were not parties to the decree in that case and it was held that their right to redeem was not affected by such sale. But no question of limitation arose in the case. As a matter of fact, the suit was filed by a minor plaintiff to set aside the Court sale or to have it declared that it did not affect his rights. Moreover the decision appears to have proceeded upon the footing that the sale was void; on that date the change of view effected by the Privy Council decision in Malkarjun v. Narhari (1900) 10 M.L.J. 368 : L.R. 271.A. 216: I.L.R. 25 Bom. 337 did not come into force. We find this observation at page 376 in the leading judgment of Shephard, J.:
Such being the purpose of the Legislature I think it is clear that although a sale in contravention of the section is not absolutely void for all purposes, it is at least void against all persons who were not parties to the suit in which the decree for money was obtained.
If it was void against persons who were not parties, there is no question of setting aside the sale; if it was only voidable, the plaintiff in that suit was within time when he sought the avoidance. The decisions in Lakshmadu v. Ramudu I.L.R. 1940 Mad. 123 and Hamidgam Ammal v. Ammasahib Ammal : AIR1941Mad898 relied on for the respondents, do not throw much light on the question now under consideration. If the interest of the sons could be brought to sale in execution of a decree against the father, then the point that the sons were not parties to the decree and therefore the sale is not binding against them, ceases to have any weight.
6. Mr. Panchapakesa Sastri also contended that, as a promissory note was taken for the interest due under the mortgage and there was an endorsement on the mortgage deed evidencing discharge, pro tanto, there was no contravention of Order XXXIV, Rule 14, Civil Procedure Code, as the claim on foot of the promissory note, though connected with the mortgage, could not be said to be one arising under the mortgage. He relied upon the unreported judgment in L. P. A. No. 100 of 1938, of Burn and Krishnaswami Ayyangar, JJ., in this connection. In that case, the promissory note was taken in the name of the son, and King, J., held that the decree obtained by the son on foot of the promissory note could not be said to be one arising under the mortgage merely because the son and the father were, or could be stated to have been, members of a joint family at the time. How far the fact that the promissory note stood in the name of the son influenced the learned Judges in the Letters Patent Appeal to reach the conclusion they did, is a matter of some doubt. I do not want to express any final opinion on the question, as I rest my decision on the first point raised for the appellant.
7. It is also unnecessary to go into the question of the accountability for mesne profits. The plaintiffs cannot have it bothways. If the sale is invalid, which is their contention, then the first defendant, who purchased their 2/3rd interest, cannot be regarded as a mortgagee; so far as they are concerned, he is only a trespasser.
8. In the result, the second appeal is allowed with costs and the plaintiffs' suit dismissed, each party bearing their own costs in the Courts below because the point on which the appellant has now succeeded is a point not raised by him earlier.
9. No leave.