1. I agree with the judgment about to be delivered and have nothing to add, to it.
2. The suit out of which this appeal arises was brought on foot of a mortgage-deed dated 3-11-1896 for the recovery of the mortgage amount, by an assignee, from the heir of the mortgagee, Ayyasami Pillai. The main defence is that the mortgage was extinguished by reason of the decree in O.S. No. 11 of 1898 and the proceedings in its execution. That suit was based on a prior mortgage dated 17-3-1896 'and Ayyasami was the 8th defendant therein. In his written statement (Ex. V c) he stated that he had no objection to the passing of a decree and prayed that the balance, after selling the property and paying off the amount due to the plaintiff might be paid towards his mortgage. The other defendants, in that case originally contested the suit but afterwards filed a. compromise petition (Ex. C) by which the amount to be decreed was determined and a compromise decree (Ex D) was passed. The learned vakil for the respondent argued that Ayyasami was not a party to that decree. I cannot agree to this contention. His name appears in the cause title of the decree and the court was not even asked to strike his name out of the record. The suit cannot be regarded as still pending so far as he is concerned nor can it be said that it was dismissed as against him. It follows therefore that the decree directing the sale of the properties without reserving his right (i.e.) free of his mortgage Vide Sri Gopal v. Pirthi Singh (1902) I.L.R. 24 All. 429 (P.C.) is a decree affecting him and is binding on him. If duly executed, it ought to extinguish his mortgage.
3. The property was sold on 9th July 1904 (Ex. VII); some time before the sale, (i.e.) on 6-4-1904., Ayyaswami died and his legal representatives were not brought on record. In these circumstances, the Subordinate Judge held that the sale could not effect his, interests. It is contended for the appellants that Ayyasami was a pro forma defendant and cannot be regarded as a judgment-debtor and it was not necessary that his legal representatives should be brought on the record. This contention is inconsistent with the main plea that he was a party to the decree and his mortgage, was therefore extinguished. A second mortgagee when, impleaded in a prior mortgagee's suit is not a pro forma defendant. He can redeem the earlier mortgage by paying up the decree amount at any time before the sale. He can apply to set aside the sale under Order 21, Rule 89 or 90. He can apply that the balance of the sale proceeds after discharging the prior mortgagee's dues may be paid to him. Though it is true that, what was mortgaged to the plaintiff in that suit was the mortgagor's property as it stood on 17-3-1896 and therefore, the plaintiff could get the property sold free of subsequent encumbrances, the plaintiff could do this only by a properly constituted suit and proceedings in execution i.e., by impleading the puisne mortgagee or his repre, sentatives and the interest of the mortgagor which the prior mortgagee would then be entitled to sell may be said to comprise, at the time of the sale, the interest of the subsequent mortgagees and the mortgagor's equity of redemption. I am therefore of opinion that Ayyasami was a judgment debtor in O.S. No. 11 of 1898.
4. It is next contended that the sale is not a nullity. It is said (1) that the proceedings in the execution of a mortgage decree after the order for sale is passed (and the proceedings in the execution of a money decree after the order for attachment is made) are administrative and (2) that the irregularity in not bringing the legal representatives of the judgment-debtor on the record will only make the sale voidable and as it had not been set aside within thirty days of the sale (Article 166 Limitation Act) or within one year, (Article 12) the sale stands, not being a nullity. It may be that some proceedings in execution after an order for sale is made do not amount to the '' determination of any question within Section 47 of the Code of Civil Procedure, 1908' so as to amount to a degree, for the purpose of being appealed against (See Sivagami Achi v. Subramaniya Iyer (1903) I.L.R. 27 Mad. 259 (F.B.), and may be said to be 'administrative' as opposed to 'adjudicating' in the sense that they do not adjudicate a right but carry out some prior order, but they are none the less judicial proceedings in the sense that they are the proceedings of a. court of justice and not of an executive' authority and if not, legally carried out, may be materially defective. This leads me to the next question as to the nature and effect of the defect in the proceedings.
5. Section 50 of the Civil Procedure Code (corresponding to Section 234 of the old Code) lays down that ' Where a judgment debtor dies before the decree has been fully satisfifed the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased.' It is obvious that' the word 'may' in this section is equivalent to 'shall', for except in the sertse that the decree-holder may, if he chooses, drop the execution altogether, there is no option left to him and it is imperative on him to follow the procedure enjoined by the section, if he desires further execution. As it is opposed to all notions of justice to alow legal proceedings to be taken against an estate without there being some person in the record to represent the estate, one would suppose that such proceedings in execution taken without having the legal representative, of a deceased judgment-debtor on the record are void and do not amount to a mere irregularity. It is difficult to see how, for this purpose, any distinction can be drawn between the case of a judgment debtor's death before the order for sale is passed and the case of a death after the order. The estate has to be represented on the record by some one interested in watching the proceedings until the sale is confirmed., I will now examine the cases on the point.
6. The case of Mallikarjun v. Narahar I.L.R. (1900) Bom. 337 P.C. was very much relied on for the appellants but in my opinion does not help them, 'in' that case the procedure laid down by the Code was followed. An application was made to bring the legal representatives of the deceased judgment-debtor on the record. The court received the application and did issue notice to the party named as the heir. '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 so doing 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' (Lord House at page 347). These observations do not apply to the case now before us. The procedure laid down by the Code was not followed in this case. This is not therefore, the case of afterroneous decision, ruling, or exercise of discretion of the judge in a matter in which the court had jurisdiction, I think that the interest of Ayyasami was not represented law or in fact in the proceedings in execution after 6-4-1904 and the sale of the property, so far as his interest was sought to be affected by it, was therefore without jurisdiction and null and void (Vide Khairajmal v. Daim I.L.R. (1904) Cal. 296 2 which is a case of the decree being itself void). But there is no substance in the distinction that, when the decree was duly obtained against the deceased judgment debtor, the sale in execution after a decree without the their of the judgment-debtor properly on the record is not a nullity. This is clear from the case of Rashid Un-nissa v. Mohamad Ismail Khan I.L.R. (1909) All. 572. Vide also Paidanna v. Lakshmi Narasimha I.L.R. (1914) Mad. 1076 where it was held that execution proceedings obtained against a minor legal representative of a deceased judgment-debtor without his being represented by a proper guardian ad litem are void. A fortiori, a said in execution carried out against a dead person (or no person) is void and should be regarded a nullity and has not got to be set aside. It seems to me that the' decisions of Indian High Courts prior to 31 All. 572 (i.e.)(a) those in favour of the appellant such as Sheo Prasad v. Hira Lal I.L.R. (1889) All. 440 Abdur Aba v. Dhondu Bai I.L.R(1894) . 19 Bom. 276 which while seeming to disapprove of 12 All. 440 are based finally on grounds not quite clear and (b) decisions like Emmaswami v. Bagirathi I.L.R.(1883) Mad. 180 and. Krishnayya v. Unnissa Begum I.L.R. (1891) Mad. 399 (where Shephard, J. said that it was not a case of mere irregularity but the learned Judges in Letters Patent Appeal described the defect as a material irregularity causing substantial injury which are rightly commented on by Mr, Rarjgaehari the learned vakil for the appellants, as inconclusive, are not of much value. But the other Madras decisions cited before us viz., Grovez v. Administrator General I.L.R. (1898) Mad. 119 and Rayarappa Napibiar v. Malihandi Akath Mayan : AIR1914Mad297(2) are dicidedly against the appellants. The language of the learned Judges in these cases is clear and unambiguous. I agree with the remarks of Boddam J. in 22 Mad. at p. 125 where he disagrees with 12 All. 440 (F.B.) It is said that Article 12 of Limitation Act was not considered in those cases as the matter arose in execution and not in a separate suit. On the view taken by their Lordships in those cases viz., that the sale was a nullity, no such question could arise; I may add that, if the sale in pursuance of an order for sale against the judgment-debtor (when living) is not a nullity but only voidable, as contended by the appellants any attempt to set aside the sale must be made in execution and not by a regular suit and no occasion for the application of Article 12 can arise. The cases in Narayana Kothan v. Kaliyanasundaram I.L.R. (1895) Mad. 219 which Boddam, J. described in 22 Mad. 119 as supporting his view Muhammad Raft v. Muhammad Askari (1916) 37 I.C. 433 Seshagiri Row v. Hanumantha Row I.L.R. (1915) Mad. 1031 and C.M.S.A. No. 37 of 1920 and Lala Ganpat Lal v. Bindbaasni Prasad Narayan Singh (1920) 39 M.L.J. 108 are not cases of the judgment-debtor's death and need not be considered. As to the cases decided in Calcutta, in Net Lall Sahoo v. Shaikh Kareem Buse I.L.R. (1896) cal. 686 the heirs were parties to the proceedings in execution. In Bepin Behari Bara v. Sasi Bhusan Batta (1914) 18 C.W.N. 766 the sale was a sale under the Public Demands Recovery Act of the Bengal Code and may perhaps be distinguished on that grdaind. But it must be admitted that the manner in which the Madras cases were deferred to at p. 768 supports the appellants. So far as the reference to 22 Mad. 119 'is concerned, I would observe with great deference to the eminent Judges that decided 18 C. W. N. 766 that, though Boddam, J. concludes by saying that the sale should be set aside, there is no doubt as to what the learned Judges meant (Vide pp. 123-125) viz., that the sale should be declared vide. In Jagadish Bhattachargee v. Bama Sundari Dasyi (1919) 23 C.W.N. 608 (case of a money deqreej Richardson, J. merely follows 12 All. 440 and Shamsul Huda, J. Was content to follow 18 C.W.N. 766. The decision in Mussamati Rukini v. Jodha Singh (1913) 19 I.C. 120 might be also described as incoactusive but for the manner in which Malkarjan v. Narhari I.L.R. (1900) Bom. 337 was distinguished by the, learned Judges In my opinion, Malkarjun v. Narahari might have been distinguished on the ground that it was not, whereas the case before their Lordships, was a case of nullity.
7. The distinction made between an application for attachment and an application for sale in Sita Ramayya v. Gopala-krishnamma I.L.R. 43 Mad. 57 in the course of applying the decision in Rahunath Das v. Sundara Dos Khatri I.L.R. 42 Cal. 72 (P.C.) (a decision on Order 21, Rule 22,) cannot help the appellants. The application there was made against judgment debtor himself and no question arose as to the effect of Section 50 Civil Procedure Code which would certainly cover even all applications in execution after attachment. I therefore hold that the execution of the decree in O. S. No. 11 of 98 not being carried out so as to affect Aiyyasami's interest, his mortgage is not extinguished.
8. The only other question is whether the payment of Rs., 250 on 15-2-04 is true. The evidence is all one way and I accept the finding of the Court below. The suit is therefore not barred.
9. In the result, the appeal fails and is dismissed with costs.
10. There is a memorandum of objections by the plaintiff. He objects to those portions of the judgment and decree which direct that the plaintiff should execute an indemnity bond for Rs. 3775, to be answerable to the reversioners of Ayyasami on the death of the 8th defendant. The reversioners are not parties to the suit. I do not think that the directions for the benefit of the absentee reversioners is justified. I agree with the plaintiff's contention and allow his cross objections with costs and direct that Clause (3) of the decree should be deleted.
11. Time for redemption is extended to 28-2-1922.