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M.L.M. Ramanathan Chettiar Vs. Ramanathan Chettiar and ors. - Court Judgment

LegalCrystal Citation
Subject Property
CourtChennai
Decided On
Reported inAIR1929Mad275
AppellantM.L.M. Ramanathan Chettiar
RespondentRamanathan Chettiar and ors.
Cases ReferredNissa v. Mahomed Ismail Khan
Excerpt:
- - we are perfectly clear that parties who have thus in effect agreed to the figure which is to be advertised for the information of intending bidders, cannot be heard later on to plead that the figure was unduly low, that in effect they were consenting parties to a conspiracy to mislead bidders. the evidence for the respondents on this matter was of an extremely poor quality, merely that of two witnesses who come one year after the sale, and say that they believed the property to be worth three or four times what it fetched, that they themselves intended to bid for it but did not do so because one of the subsequent mortgagees, defendant 14, died and they did not think that the sale would go on. 4. their evidence as to value is of the vaguest kind and much better evidence could have.....1. this is a series of connected appeals, the main point in which is the correctness of the lower court's-cancellation of the execution sale held in execution of a mortgage-decree which the appellant in c.m.a. 487 of 1925 obtained by assignment.., the mortgage was over six villages of the sivaganga zamindari, the mortgagors being the daughters-of the late zaimindar. at the court sale, the mortgagee-decree-holder, who is the appellant in c.m.a. 487 of 1925, bought the right, title and interest of the mortgagors in four out of the six villages and' the appellant in c.m.a. 566 of 1925. bought the same in two out of the six; villages. the contesting respondents to these two appeals are the mortgagors and certain puisne mortgagees who are defendants 15 to 17. these claim that the sale was.....
Judgment:

1. This is a series of connected appeals, the main point in which is the correctness of the lower Court's-cancellation of the execution sale held in execution of a mortgage-decree which the appellant in C.M.A. 487 of 1925 obtained by assignment.., The mortgage was over six villages of the Sivaganga Zamindari, the mortgagors being the daughters-of the late Zaimindar. At the Court sale, the mortgagee-decree-holder, who is the appellant in C.M.A. 487 of 1925, bought the right, title and interest of the mortgagors in four out of the six villages and' the appellant in C.M.A. 566 of 1925. bought the same in two out of the six; villages. The contesting respondents to these two appeals are the mortgagors and certain puisne mortgagees who are defendants 15 to 17. These claim that the sale was vitiated by illegalities and irregularities which occasioned to them substantial injury on account of the low price fetched for the property at the sale. The lower Court has, on their petition-E. A. 210 of 1924 to set aside the sale-upheld their contention and set aside the sale, and the two auction-purchasers appeal. These appeals are C. M. As. 487 of 1925 and 566 of 1925, which we shall first take up.

2. It will be convenient to decide first whether it has been proved that in fact there was any substantial injury. The first argument which has found favour with the lower Court is that the valuation of the property as set out in the proclamation of sale was unduly low. Now the mortgagors who had notice of the execution petition and of the proclamation of sale never made any such objection then. The subsequent mortgagees, defendants 15 to 17, were in the execution proceedings represented by their father, defendant 14, who has since died. It is clear from the B diary in the execution petition, which is E.P. 884 of 1923 dated 10th October 1923 that, though defendant 14 at the time of the settlement of the proclamation at first objected to the valuation as being low, he subsequently withdrew his objection and consented to the proclamation joint out as it stood. Other subsequent mortgagees, defendants 19 to 21, who had other objections, but not this one, to the sale, also withdrew all those on the date of sale. Neither they nor the mortgagors took any objection to the low valuation in the proclamation. We are perfectly clear that parties who have thus in effect agreed to the figure which is to be advertised for the information of intending bidders, cannot be heard later on to plead that the figure was unduly low, that in effect they were consenting parties to a conspiracy to mislead bidders. In our view, these respondents are estopped by their conduct from putting up such a plea and the lower Court was wrong in allowing it. It may be noted that in the enquiry on the petition to set aside the sale, none of the (parties to the decree and no witnesses were called to -depose that the valuation an the proclamation was low, nor were -any intending bidders examined to say that they even read the proclamation were misled by any figures given in the valuation.

3. It is next contended that the sale price actually fetched was unduly low. The evidence for the respondents on this matter was of an extremely poor quality, merely that of two witnesses who come one year after the sale, and say that they believed the property to be worth three or four times what it fetched, that they themselves intended to bid for it but did not do so because one of the subsequent mortgagees, defendant 14, died and they did not think that the sale would go on. Their evidence cannot for a moment be accepted. Defendant 14 did not die until the first day of the sale itself. Yet these witnesses did not go to the sale on that day or even send any one to find out whether the sale was going on. The person who was dead was not one of the real judgment-debtors but merely a subsequent mortgagee, who had no doubt some interest in the property, but we do not see why they should assume either that the sale would not go on because of his death, or that the Court knew of his death on the very day he died, and would therefore not continue and even conclude the sale on that very day. Genuine bidders would have gone to the Court to see if the sale was going on. One of these two witnesses says he ' heard '-from whom he does not say-that the sale would not go on. The other says he ' thought' it would not go on. There is no evidence of the time of the day when defendant 14 died. If it was in the afternoon-and the onus lies upon the respondents-there was no reason Whatever for these two witnesses, if they really were bidders, not going to the sale. Apparently they knew that the deceased had left an adult son, defendant 15, who, they would have learnt on the Slightest enquiry, was also a party to the suit and the execution petition. It is obvious 'that they were not real intending bidders and that their presence would not have improved the price fetched.

4. Their evidence as to value is of the vaguest kind and much better evidence could have been put forward, if the claim were true. The property put up for sale Was zamin villages which have been under lease, yet the respondents made no attempt to get the zamin accounts or the lessees' accounts or to adduce any evidence as to what the melvaram is. It is argued that the fact that the villages are under lease for Rs. 12,500 a year shows that their market value will be at least about twenty times that figure. We do not think so facile a deduction is permissible. We know nothing of whether the lease figures are actually being collected or whether they are being collected with or without difficulty or litigation. Further, what was sold was not the whole proprietary interest in these villages, since the mortgagors only possessed three-fourths of that interest in five of the villages and one-fourth in the other. Also, it has to be remembered that subsequent to the fixing of the lease amount, an important suit. was filed and was pending at the time of this sale by the grand daughter of the zamindar, raising the question whether the mortgagors possessed anything more than a life interest in the villages. This suit is not finally disposed of but is pending in this Court now in appeal. The contingency that this might turn out unfavourably to the mortgagors might reasonably be expected to act as a deterrent on bidding It is argued here for the respondents that the fact, that they took subsequent mortgages and have prosecuted suits and got decrees on them shows that the property must be worth much more than the present value of the first mortgage which is just about what it fetched at the sale. There is no presumption either of law or of fact on such lines. The present value of the villages may be much less than it was when the mortgages were taken. The facts that only one bidder besides the decree-holder came forward, to try to secure this alleged very desirable and lucrative investment, and that even these respondents themselves did not bid, even at the low valuation, as they say,' put upon the property, indicate that there was no substantial loss by' reason of the price fetched at the sale. One cannot base a decision on speculative and arithmetical calculations of this kind, and no reliable evidence has been offered to prove that the sale amount fetched was in fact unduly low. Court' sales should not be set aside on such flimsy evidence. we would, therefore, hold, in reversal of the Subordinate Judge's decision, that the contesting respondents in these two appeals have wholly failed to show that the price realized at the sale was not a proper price and 'have therefore, failed to show that there was substantial loss to them. That being so, it does not matter if there was any irregularity in the proceedings. The respondents can succeed now only if they show that there was some illegality which renders the sale void.

5. The illegality alleged arises from the following circumstances: Defendant 14, the main petitioner in the application to set aside the sale, was the father of defendants 15 to 17. The family was joint. It the appellant's suit, these latter were impleaded as minors with defendant 14 as guardian. In the appellant's execution petition, they were also styled as minors, but by that time defendant 15 had attained majority. According to the age-given in his own execution application No. 210 of 1924 dated 9th September 1924, he was then 24 years old. He was, therefore, 23 on the date of the appellant's execution petition which was dated 10th October 1923 and was about 24 on the date of the execution sale which was on 5th August 1924. He was, however, not declared a major in the execution petition and remained on the record represented by defendant 14 as his guardian. No fresh vakalat seems to have been filed in the execution petition, so that the only vakalat was the vakalat filed in the suit, which was filed by defendant 14 alone, apparently for himself and not also as guardian of his minor sons. However that may be, the joint family of which defendant 14 was the father and the managing members had clear notice of the execution petition, and defendant 14 appeared and contested it. Defendant 15 was then, as noted, a major and was undivided with his father, The sale was posted to 5th August 1924, and began on that date. On the same day defendant. 14 died, whether before or after the sale began, we do not know from the evidence. His death was reported to the Court on the next day and the decree holder was on that day made aware of the fact. The matter was adjourned to 11th August 1924, for consideration, on which, date it was argued, apparently by both sides. The decree-holder then said that defendant 14's heirs and legal representatives were already on the record and the Court recorded the papers. See order dated 11th August 1924. The legal representatives of defendant 14 then were as a matter of fact defendants 15 to 17 and another son born after the decree was passed, who, however, had not been brought on record. The sale continues from 5th August 1924 to 11th August 1924 and was concluded on the latter date.

6. On these facts several contentions are put forward by defendants 15 to 17. (a) that, as defendant 15 was a major at the time of the execution petition, he should have had a separate notice thereof; (b) that,. when defendant 14 died, and thus ceased to represent defendants 15 to 17, fresh notice should have been issued to them; (c) that, when defendant 14 died, a fresh guardian should have been appointed for defendants 16 and 17; (d) that the after-born son should have been brought on and (e) that two after-born sons of defendant 15 should have been brought on.

7. Points (d) and (e) may be disposed of at once. The two after-born sons of defendant 15 are in no sense the legal representatives of defendant 14, their grandfather, while the after-born son of defendant 14 was not born on the date of the suit, and was sufficiently represented, if his elder brothers, who were parties to the decree, were themselves sufficiently represented. Order 22, Rule 4, by virtue of Rule 12 of the same order, does not apply to execution petitions, and there is no corresponding rule affecting execution petitions which lays down, as a matter of law, that all legal representatives must be added therein. Some of the legal representatives, namely, defendants 15 to 17, were already on the record. The Subordinate Judge appears to us to have been wrong in applying Narayana Ayyar v. Venkata Ramana Ayyar [1902] 25 Mad. 220. We do not see what bearing that ruling has on this point. We find no substance in points (d) and (e).

8. Points (a) and (b) may go together. Up to 5th August 1924, the interests of defendant 14's family as puisne mortgagees were sufficiently represented by defendant 14 himself. Subsequent to his death, the adult member, defendant 15, had no notice served on him as an adult. As a minor, if he was to be still regarded as a minor in the status in which he was shown in the execution petition itself, he had lost his guardian ad litem and no fresh guardian had been appointed. As for his minor brothers, in their case also they had lost their guardian ad litem and no fresh guardian had been appointed. In these circumstances, tht sale was held with one adult member of the family, who had not been personally served with notice under Order 21, Rule 22, and two minor members without a guardian on the record, and the question is whether there is here any illegality which renders the sale proceedings void, and, therefore, not binding not only on defendant 14's family but also on all other parties affected by the sale.

9. In order that there may be an illegality proved, there must be shown some breach of a definite rule of law. At the time of defendant 14's death, defendant 15 was a major and he and his minor brothers, defendants 16 and 17, were already on the record and parties to the suit and decree. As the legal representatives were already on the record, the objection can only be based on the ground either that the estate was not properly represented or that the necessary parties themselves were not properly represented. The former objection would be based on the ground that no fresh notices were given to any of them and the latter that defendants 16 and 17, being minors, had no fresh guardian appointed. The first objection, so far as it is not contained in the second reduces itself to the question whether, on the death of defendant 14, a fresh notice should have been issued to the adult defendant 15. As to whether notice was in law necessary at all, it is for the respondents to show that some-statutory provision of law was broken. The contention is that such a notice is mandatory under Order 21, Rule 22. The general scope of Order 21, Rule 22 will have to be considered. That rule lays down that:

when an application for execution is made-more than one year after the date of the decree or against the legal representatives of a party to the decree, the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.

10. The omission to issue any notice at all prior to taking out execution under this. rule in cases where that rule requires is to be done is no doubt an illegality: see Shyam Mandal v. Satinath Banerjee [1917] 44 Cal. 954 and Viswanatham Chetty v. Somasundaram Chetty A.I.R. 1922 Mad. 93, which is to the contrary, has been dissented from in the Full Bench decision in Rajagopala Aiyar v. Ramanujachariar A.I.R. 1924 Mad. 431. The mandatory character of the provision as it stands only applies when the application is being first taken out: see the remarks of Ramesam, J., at p. 306 of 47 Mad. The language of the rule seems clearly to imply that. Now in this case the initial notice was of course taken out and served on defendant 14 for himself and as guardian of his minor sons. No doubt defendant 15 was then an adult, but the fact that no initial notice was taken out also to him as such is immaterial. Notice was given to him through his guardian and neither he nor his father chose to put him forward as a major. The matter and date of his attainment of majority were peculiarly within the knowledge of defendant 14 and himself, and are not matters on which the decree-holder can be expected to have accurate information. The application for execution was pending nearly ones year before defendant 14 died, and if defendant 15 wished to come on as a major in the proceedings, he or his father ought to have made a motion to that effect. They both acquiesced in defendant 15 remaining on the record as a minor ex parte, since his guardian did not file any vakalath on his behalf. We are clear that there was nothing contrary to law in that separate notice of the execution petition was not initially issued under Rule 22 to defendant 15 though he was a major. He having waived the issue of it, if it was necessary, cannot now be heard to say that its absence is as illegality: see Sundararamareddi v. Pattabhiramreddi [1917] 6 M.L.W. 272. In Seshagiri Rao v. T. Jagannadham [1916] 39 Mad. 1031, it was held that a decree against a person treated as a minor when he was really a major is not a nullity and a sale in execution cannot be set aside on that ground. See also Lanka Sanyasi v. Lanka Yerran Naidu A.I.R. 1928 Mad. 294. Therefore the initial notice to defendant 14 served on him was sufficient compliance with the law so far as an initial notice was necessary.

11. The question then is, does the law demand the issue of a fresh execution petition against the legal representatives of a judgment-debtor when he dies during the pendency of the execution proceedings? Clearly the Code itself does not in terms say so. Section 50, Civil P.C., does not, we think, interfere with this position. That section has never, so far as we know, been interpreted to imply that on the death of the judgment-debtor during the pendency of the execution proceedings, a fresh execution petition must be taken out against the legal representatives. On the contrary there are any number of cases, many of which we quote later, which show that the proper procedure is to bring on the legal representatives in the original execution proceedings. Section 50 only therefore lays down a general principle of which Order 21, Rule 22 is the corollary, namely, that an execution petition must start with the application to execute against the judgment-debtor, or, if he is already dead, then against the legal representatives and with a notice issued to such person to show cause. It is obviously not the law that the moment a judgment-debtor in an execution petition dies, the Court loses jurisdiction in the matter and the execution petition collapses. We are not prepared to extend to the case of a judgment-debtor the ruling in Palaniappa Chettiar v. Valliammai Achi A.I.R. 1927 Mad. 184, nor has such an argument been put forward before us. It therefore follows that the proceedings do no not come to an end. If it were to be held otherwise, then a meticulous and ridiculous enquiry into perhaps the exact minute of the party's death might be necessary, whether,' for example, the death was just at the time when the property was being knocked down to the highest bidder or at the time of the confirmation of the sale. The Court has clearly jurisdiction to go on with the execution proceedings and to receive an application to bring on necessary parties if such are necessary. Does then the death of the original judgment-debtor during the pendency of the execution proceedings entail in law the issue of a fresh notice to his legal representatives? The general principle laid down by authorities, to which we shall refer, is that an initial notice under Rule 22, when issued, does sufficiently, for the purpose of the law, bring into Court the estate against which execution is being enforced and sufficiently retains it there, unless the result of the death of the party to whom notice was originally issued is to leave no one at all on the record to represent the estate and thus to effect the disappearance of the estate from the jurisdiction of the Court. If, therefore, there is any person left on the record who can and does sufficiently represent the estate, a fresh notice under Rule 22 is not required by law. For example, the Privy Council in Mallikarjun v. Narhari [1901] 25 Bom. 337 has held that the continuation of execution proceedings even with the wrong legal representatives is with jurisdiction and the sale in such circumstances is not a nullity, because the Court has jurisdiction to enforce against his estate the debtor's liability already established by the decree: see also Ramaswami Chettiar v. Oppilamani Chetti [1910] 33 Mad. 6 and Kadir Mohideen Marakayar v. Muthukrishna Ayyar [1903] 26 Mad. 230 and a Privy Council case in which the legal representative was brought on by the wrong procedure. See the decision of the Privy Council in Jang Bahadur v. Bank of Upper India Ltd. Lucknow A.I.R. 1928 P.C. 162. The Privy Council case in Malliharjun v. Narhari was called in aid in Doraiswami v. Chidambaram Pillai A.I.R. 1924 Mad. 130 where a Bench of this Court used it to support a ruling that, even if no legal representative was brought on when the judgment-debtor died during the pendency of the execution petition, the execution sale was valid. They dissented from a ruling of a single Judge to the contrary in Ragunathaswami Iyengar v. Gopal Rao A.I.R. 1922 Mad. 307. This conflict led to the matter being placed before a Full Bench whose ruling is in Rajagopala Ayyar v. Ramanujachariar. The facts in that case need to be shortly considered. A decree for maintenance had been obtained against property bequeathed to two legatees under a will, defendants 1 and 3, the bequests being separate and of separate properties. Notice of the execution petition was sent only to defendant 1 who appeared to have been somehow in possession of both the estates.

12. The Full Bench held that as no notice had been sent to defendant 3, the sale was void against him. It is clear in that case that the estate of defendant 3, was not and could not be represented at all by defendant 1 and that notice had mot been taken to the person against whom execution was sought in respect of that estate. The Privy Council case Ragunatha Das v. Sundar Das Khetri A.I.R. 1914 P.C. 129, which is relied on in the Full Bench case, is from this point of view exactly similar and is very important. It has to be noted that it is not a case of devolution of property by death and therefore not a case strictly of a legal representative at all, nor is the phrase 'legal representatives' used in the greater part of the judgment. No doubt in the arguments put before their Lordships' and in their Lordships' judgment it is assumed that the necessary notice would have to be issued under Section 248, Civil P.C. which corresponds to Order 21, Rule 22, but it is unsafe to infer from that that the Privy Council laid down that the Official Assignee was the legal representative of the insolvent judgment debtor.

13. It was merely assumed for the sake of argument in that case that a notice had to go, and that the sort of notice necessary was the notice required by Section 248. There was no definition of 'legal representative' under the old Code; but the term was used more loosely than under the present Code; for example the old Section 371 speaks of a legal representative of an insolvent plaintiff. Significantly enough the- language now used in the corresponding Order 22, Rule 9 is 'the assignee or receiver in the case of an insolvent plaintiff.' The present definition of a legal representative does not and cannot cover the case of the Official Assignee. This ruling therefore cannot be called in aid for the proposition that when a judgment-debtor dies during the pendency of the execution proceedings a fresh notice must go to his legal representative on peril of the proceedings being void. It is obviously a case where the judgment-debtor could no longer represent the estate because that had devolved on the Official Assignee by his insolvency, and, therefore, the estate went unrepresented until and unless the Official Assignee was brought properly on the record. The Privy Council held that he had not been so brought. It was therefore a clear case of there being no one on the record to represent the estate and, therefore the, sale was irregular and inoperative to bind the estate. It may be noted also that their Lordships do not describe the sale as ' null and void ' or ' without jurisdiction.' The other cases cited before us on this point Ramasami v. Bagirathi [1883] 6 Mad. 180, Krishnayya v. Unissa Begum [1892] 15 Mad. 399, Groves v. Administrator-General [1899] 22 Mad. 119, Rayarappan Nambiar v. Malikandi Akath Mayan : AIR1914Mad297(2) Ragunthaswamy lyengar v. Gopal Rao and Gopalachunder Chatterjee v. Gunamani Dasi [1893] 20 Cal. 370 are also cases in which no one was left on the record to represent the estate. In Rajayya v. Annapurnamma A.I.R. 1926 Mad. 138 reliance was placed on the Ragunatha Das v. Sundar Daskakietri case for the proposition that the sale was a nullity when the legal representative of the deceased judgment -debtor was not brought on. The facts were that, though the minor had been added as a defendant in the suit along with the original defendant, he fell out of the suit when the decree was transferred for execution to another Court, and was not represented by any one on the record at the time of the execution petition. On the other hand, the Privy Council in Krishna Pershad Singh v. Motichand [1913] 40 Cal. 635 held, even in a case where the judgment-debtor died after attachment and no notice had been taken to the legal representative, that the lack of notice was merely an irregularity within the meaning of Section 311, and the Question of total lack of jurisdiction does not seem to have been raised then. Now, these are all cases in which, when the judgment-debtor disappeared by death from the record, no one was left on the record to represent the estate.

14. We do not think these cases are to be applied to a case like the present where the legal representatives were on the record all the time representing the estate, and one of them was an adult, capable, if he had chosen, of looking after the interests of the estate. Where an adult; legal representative is already on the record and notice has gone to him under R 22, it is not mandatory that notice should also go to others : see Runhammad v. Kutti [1889] 12 Mad. 90 and Azizaunnessa v. Divaraka Prasad Boral : AIR1925Cal1227 . We would extend this principle a little further and hold that, where there is on record in the execution petition an adult legal representative who ought to have come forward and requested notice under Rule 22 and did not, he still sufficiently represents the estate, and no further notice is necessary to him or to the other legal representatives. Such a notice may in some cases be very advisable, but the omission to send it will be merely an irregularity and not an illegality. So long as there is a person on the record who is holding the estate, the Court has 'seisin' of the estate for purposes of satisfying the decree out of it. It is only when an estate drops beyond the seisin of the Court as by death of the judgment-debtor with no one left to represent the estate on the record or by insolvency or by some such other devolution, that the Court must bring on the record some person holding the estate or representing it, to whom notice ought to go. Our answer to points (a) and (b) therefore is that the initial notice under rule 22 must be issued, at the time of the application for execution, to the judgment-debtor if he is alive, if the application is beyond one year from the date of the decree, or to his legal representative in all cases if he is dead before the application is put in, and the omission to do so is an illegality which renders the sale void unless Sub-rule (2) applies. When such a notice has been initially issued, no fresh notice is required by law to be issued on the death of the judgment-debtor during the pendency of the proceedings, if some one who can represent and is representing the estate is already on the record, even if he be a wrong legal representative or a legal' representative brought on by the wrong procedure.

15. Defendant 15 then being on the record and an adult and so capable of representing the estate the only question remaining is point (c) whether there was any breach of the statutory law in not having a fresh guardian ad litem appointed for his minor brothers, defendants 16 and 17. The statutory procedure regarding the representation of minors is laid down in Order 32. This Order, however, has no direct application to execution petitions at all if the rights of the parties have merged in a good and valid decree : see Fani Bhusan v. Surendra Nath : AIR1921Cal476 and Rakhal Chandra De v. Kumudini Deby : AIR1927Cal930 compare, however, the remarks of Sir John Wallis, C.J., at p. 924 (of 44 Mad.) Muthia Chettiar v. Govindoss Krishnadoss A.I.R. 1921 Mad. 599. The only relevant rule in that order relating to representation of a minor defendant is Rule 5 (2). This rule by its wording gives a discretionary power to the Court and that discretion has been usually exercised as follows : If there is already some adult on the record, for example, the manager of the joint family who does adequately represent the estate and its interests, the mere omission to appoint a guardian for the minor will not invalidate the proceedings. : see Khiarajmal v. Daim [1905] 32 Cal. 296, and Nakul Chandra Das v. Rajendra Chandra : AIR1927Cal873 . Such minors are in fact not even necessary parties : see Sheo Shankar Ram v Jaddo Kunivar A.I.R. 1914 P.C. 136. Even if the guardian is not the guardian ad litem, the proceedings are not void, Jinnat Ali v. Kailash Chandra : AIR1924Cal847 . But where the estate interests are in the minor alone and he is not represented by a guardian, then the proceedings will not bind him. This Court had, however, held in Narayanakothan v. Kalianasundarm Pillai [1896] 19 Mad. 219, that, where an adult judgment-debtor became insane, the absence of a guardian for him will not render the sale void but only irregular, The ratio decidendi, however, of that decision was that the judgment debtor continued to be a party to the proceedings although he was disabled The present case is one where there was already an adult on the record who could sufficiently represent the estate.

16. We do not regard the ruling in Payidanna v. Lakshminarasamma [1915] 38 Mad. 1076, as in any way in conflict with this position. There the minor was not a party to the suit or. the decree and was brought on in the execution proceedings as a major when the decree-holder knew that she was a minor. It was held that this was a deliberate fraud on the Court and on the minor, and further that it was a fraud which had. materially prejudiced the minor. In the Privy Council cases, in Rashid-un-nissa v. Mahomed Ismril Khan [1909] 31 All. 572, and Khiarajmal v. Daim, the minors. had never been represented even in the suit and therefore the whole proceedings, including the decree, were held not binding on them. As pointed out by Sadasiva,, Iyer, J., in Payidanna v. Lakshminarasamma, the Privy Council case in Rashid-un-Nissa v. Mahomed Ismail Khan [1909] 31 All. 572 does not indicate whether the, sale was void or only voidable. It is no authority for the position that there had; been some thing more than an irregularity, namely, a breach of the statutory law or an illegality.

17. The net result is therefore that no illegality in the execution proceedings has been proved. That being so, when there is no authority to compel us to hold that, there was an illegality, we are not disposed to add another class of uncertainty to others which already infest Court sales, by ruling that in circumstances-like the present, the sale ought to be held void. It would no doubt be better in such cases that the Court should issue-fresh notice to the legal representative although he is already on the record, if in fact he has not been appearing in person and has been throughout represented) by a judgment-debtor who is dead. But at the worst, the omission to do so would be a mere irregularity which must be proved to have caused substantial loss before the sale can be set aside. Such loss we have held not proved in this case:. It may be remarked that, in his execution application to set aside the sale, defendant 15 says that from July 1922,. defendant 14 was too weak to attend to his duties, and he himself does not plead that he was unaware of the execution proceedings nor did he go into the witness-box and deny knowledge thereof. It is plain that he must have known what was going on. It was unfortunate for him that the sale was going on just at. the time of the death and the funeral, obsequies of his father, when no doubt his time and attention were occupied with them. But at the same time, we cannot believe that he did not realize that the sale was of vital interest to his family and that he did not deliberately choose not to intervene. In any case, his circumstances make no difference to the jurisdiction of the Court to sell. Had any substantial loss been proved to be the result of the want of a fresh notice to him or the lack of a guardian for his minor brothers, his circumstances would induce the Court more readily to set aside the sale. But we can, as we have said, see no indication of any such loss. We can see no ground for supposing that the sale would have resulted in any hotter figure if the omissions complained of had been supplied.

18. We would therefore allow appeals Nos. 487 of 1925 and 566 of 1925 and maintain the sale giving the appellants their costs here and below. C.M.A. 137 of 1926 is not pressed, in C.M.A. 193 of 1925 no case on the merits is urged before us. These are therefore hereby dismissed with costs. In this result C.M.A. 135 of 1926 and 107 of 1926 and 143 of 1927 are withdrawn and dismissed. The right, if any, of defendants 19 to 21 to press their separate petitions under Order 21, Rule 89 is not affected by this judgment.


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