Kuppuswami Ayyar, J.
1. The appellant in the C.M.S.A. is the auction purchaser in the sale held in execution of the decree in O.S. No. 50 of 1926 on the file of the District Munsif's Court of Masulipatam. He is also the petitioner in the connected C.R.P. and in both he disputes the correctness of the order of the learned District Judge of Kistna in C. M. A. No. 18 of 1942 setting aside the sale in toto in favour of the petitioner. They suit O.S. No. 50 of 1926 was filed by respondent 3 a creditor of one Raza Ali for recovery of money due to him. As Raza Ali was dead when the suit was filed and the seven defendants were sued as his legal representatives! and a decree was passed against them, their liability being limited to the assets of Raza Ali in their hands if any. Respondents 1 and 2 attached the decree obtained by respondent 3 in O.S. No. 50 of 1926 and brought to sale the properties which are the subject-matter of this appeal. During the course of the execution proceedings, defendant 7 in the suit died on 10th January 1941. Evidently, the attaching creditors were not aware of it and the proceedings continued without the legal representatives being brought on record with the result that on 14th July 1941, the properties were sold without the legal representatives of the deceased defendant 7 on record. The petitioners claiming to be the legal representatives of the deceased defendant 7 filed the petition out of which the appeal and the revision petition arise, for setting aside the sale on the ground that the sale was not valid and binding on them. The first Court dismissed the petition and the learned District Judge, on appeal, allowed the petition and set aside the sale. It was also contended that the property fetched a low price. The learned Judge found that the price was not adequate but set aside the sale on the ground that it was illegal and invalid as the executing Court had no jurisdiction to sell the property in the absence of the legal representatives of defendant 7.
2. So far as the legal representatives of defendant 7 are concerned, it cannot be said that the sale could not be questioned. It was pointed out in Kanchamalai v. Shahaji Rajah A.I.R. 1936 Mad. 205 by a Full Bench of this Court that when the legal representative of a judgment-debtor is not on record, the execution proceedings and the sale held in the same will be invalid. It is true in that case there was only one judgment-debtor while in this case there were several judgment-debtors. The decree was obtained not against the deceased Raza Ali but as against defendants 1 to 7 though their liability was limited to the extent of the assets in their hands. It is possible that execution of such a decree might be barred against some of them and could be executed against others. It cannot, in these circumstances, be said that one of the defendants could represent the interests of the other; for they are Mahomedan co-heirs and one of them cannot be said to represent the interests of the other. On the death of Raza Ali, the estate vested in the seven legal representatives but they took as tenants in common. A number of authorities were cited for the appellant for the position that where a decree is obtained against some of the legal representatives without impleading the rest, such & decree could be executed and the sale held in execution of such decree could be valid and binding on those persons who were not made parties. On the strength of these rulings it was stated that as in this case the other six defendants were parties to the execution proceedings, it must be considered that they sufficiently represented the heirs of defendant 7 and consequently the sale could not be set aside. The rulings cited for the appellant are Khurshet Bibi v. Keso Vinayak (1988) 12 Bom. 101, Davalava v. Bhimaji Dhondo (1996) 20 Bom. 338, Ramanathan Chettiar v. Ramathanan Chettiar : AIR1929Mad275 but then Khurshet Bibi v. Keso Vinayak (1988) 12 Bom. 101 and Davalava v. Bhimaji Dhondo (1996) 20 Bom. 338 are cases relating to Mahomedan heirs' and the correctness of those decisions was doubted in a later ruling of that Court in Bhagirathi Rai v. Roshanbi Mirkha : AIR1919Bom61 and it was pointed out that those decisions were arrived at by applying the principle of the Hindu law of representation to Mahomedans, which was not accepted by the Bombay High Court. Ramanathan Chettiar v. Ramathanan Chettiar : AIR1929Mad275 related to a case of a joint Hindu family. In all these cases, the decision was based on the ground that the other persons sufficiently represented the interest of the person who was not brought on record and they were all considered to be cases in which a decree or relief was granted as against a particular estate. In this case, it is as against seven individuals the decree has been obtained, and one cannot be said to represent the interests of the other. In Khadersa Hajee v. P. Ayissa Ummah (1911) 34 Mad. 511 and Abdul Majeeth v. Krishnamachariar A.I.R. l918 Mad. 1049 it was pointed out that in the case of Mahomedan co-heirs, one cannot represent the interests of the other. Though in Khiarajmal v. Daim (1905) 32 Cal. 296 it was found that the party who was not on record was sufficiently represented yet their Lordships also observed that the Court will have no jurisdiction to sell the property of persons who were not parties to the proceedings or who were not properly represented on record. In this case, in view of the fact that it cannot be said that the other six defendants can be said to represent the interests of defendant 7 or her heirs, the sale will not be valid so far as they are concerned.
3. The learned Judge has set aside the sale not only with regard to the petitioners but also with regard to the other defendants. There was no justification for it. The other defendants were all parties to the proceeding and they did not file any petition to set aside the sale. If their interests are distinct and different from the interests of defendant 7 (and it is only on that basis it has been contended that they cannot be said to represent the interests of defendant 7) how could it be said that the failure to implead the heirs of defendant 7 would invalidate the sale so far they were concerned? In Official Receiver, Nellore v. Venkiah A.I.R. 1941 Mad. 606 this Court found that certain of the judgment-debtors were not properly represented in the execution proceedings and holding that hence the sale so far as they were concerned was without jurisdiction confirmed the sale as against those persons who had been properly represented in the suit. The sale was set aside only as against those persons whom this Court found were not properly represented in the proceedings. In Venkatarama v. Somasundara : AIR1933Mad224 it was pointed out the sale would be invalid only with regard to the legal representatives of the deceased judgment-debtor who were not served with the requisite notice under Order 21, Rule 22 and that the sale will not be void in its entirety. The Calcutta High Court also in Srishchandra v. Rathannessa Bibi : AIR1931Cal555 which was followed in Anil kumar v. Ahmed Ali : AIR1940Cal23 has held that the sale could be set aside only as against those persons to whom notice under Order 21, Rule 22 has not gone. In the result, the order of the learned District Judge setting aside the sale in toto is set aside and instead, the sale so far as the petitioners in E.A. No. 1677 of 1941 who are the legal representatives of the deceased defendant 7 are concerned, is set aside. Parties will receive and pay proportionate costs in all the three Courts. There will be one set of advocate's fee.