Subba Rao, J.
1. (C. M. A. 634/46) -- These two civii miscellaneous appeals arise out of two orders passed by the Court of the Subordinate Judge of Masulipatam in execution of the decree in O. S. No. 127 of 1930. To appreciate the facts and the contentions of the parties, the following genealogy will be usefully referred to.
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Ananda Rao Krishnamurthi Kanakaraju Triyambaka
(died)Deft.3 Deft.1 (died) Rao(Respt. 5)
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_____________ ___________________ Bhaskara |
| | | | Rao(Deft.4) |
Rama Rao Kasava rao Lingameshvara Swarnapathi | |
Deft. 11 (Deft. 12) Rao(Deft.5) (Deft. 6) ________________________ |
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Rama Rao Kasava Rao Kanakaraju |
(Deft.7) (Deft. 8) (Deft.8) |
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Rangayya Venkateshwara Rama Rao Yugantha rao
(Deft.7) Rao(Deft.9) (Deft.8) (Deft.10)
The family owned about 200 acres of land at Doddipatla, Konduru, Ramavaram, Pallavadu, Vemavarappadu and Tamirisa. In 1925 defendants 1 and 2 executed a promissory note in favour of the plaintiff's father for a sum of Rs. 4000. In 1914 (sic) they executed another mortgage deed in favour of the plaintiff's father for a sum of Rs. 13,000. The plaintiff filed a suit (O. S. No. 127 of 1930) on the file of the Court of the Subordinate Judge of Masulipatam for the recovery of the amount due under the promissory note and obtained a decree on 9th March 1931, Under the decree the amount due was made recoverable personally from defendants 1 and 2 and from the family properties of all the other defendants. In the suit as defendants 8 and 9 were minors, they were represented by their father defendant 2 as guardian. After the decree defendant 2 and the minors, (defendants 8, 9 and 10) were represented by their mother as guardian in execution proceedings. On 17th July 1936 the decree-holder filed an application for attachment and sale of the immovable properties belonging to the family. Exihibit P. 4 shows the progress of that application. On an application filed by the decree-bolder, defendants 8, 9 and 10 were declared as majors on 6th August 1936 and notices were issued to them. The notices were returned with an endorsement that the said defendants were still minors. On 9th November 1936 the learned Subordinate Judge gave time to the decree-holder to ascertain whether they were majors or minors, but no information was furnished and no steps were taken to serve on the said defendants notices under Order 21, Rule 22, Civil P. C, Exhibit D. 9 (a) shows that the sale proclamation notice was served on defendants 7 and 8, but it was not served on defendants 9 and 10 as they were not present in the house. The decree-holder filed E. A. No. 8 of 1939 for permission to bid at the sale and EX. D. 10, the notice of that application, was returned with an endorsement that defendants 8, 9 and 10 refused to receive the same. On 13th February 1939 defendant 7 filed an application asking for an adjournment of the sale, and that was granted. Exhibit D. 11 (a) dated 6th March 1939 is another application filed for adjournment on behalf of the defendants. It is not clear from this petition whether defendants 8, 9 and 10 also gave vakalat to the advocate for an adjournment of the sale. The sale was held on 13th March 1939 and the properties situate in the aforesaid villages were purchased by the decree-holder. On 26th June 1939 two petitions were filed by some of the judgment-debtors for setting aside the sale, but they were not re-presented when returned. The decree-holder obtained delivery in July 1942. On 4th December 1942 defendants 8 and 10 filed E. A. No. 1035 of 1942, under Sections. 47, 151 and Order 47, Rule 1. Civil P. C. for a declaration that the sale held on 13th March 1939 was void and for setting aside the same and also the delivery of July 1942. The sons and the widow of defendant 4, Bhaskara Rao, filed E. A. No. 44 of 1944 dated 29th November 1943 under Section 47, Civil P. C. for re delivery of the properties allotted to the share of Bhaskara Rao on the ground that as Bhaskara Rao became insolvent, the decree-holder brought to sale only the three-fourth share of the properties. In the petition filed by defendants 8 and 10, they pleaded that the sale was void as though defendants 8, 9 and 10 were minors, they were treated as majors and no notices under Order 21, Rule 22, Civil P. C., were served on them. They also alleged that the sale was vitiated by material irregularities and fraud of the decree-holder which resulted in substantial loss to them, as according to them, properties worth a lakh and twenty thousand rupees were sold for a low amount of Rs. 12,424 subject to a mortgage in favour of the decree-holder. They asserted that the application, though filed more than three years from the date of the sale, was in time, because they were kept out of the knowledge of the right to apply for setting aside the sale by reason of the fraud practised by the decree-holder against them. They also stated that as the sale was a nullity the right to apply accrued to them only when an attempt was made to dispossess them. The decree-holder filed a counter mainly contending that the application was barred by time, that the sale was valid as notice under 21, Rule 32, Civil P. C., was served on defendant 7 who was the manager of the family, and, as the interests of the other members were represented by defendant 7 and other members of the family. He also pleaded that he did not perpetrate any fraud upon the judgment-debtors, but brought the property to sale after giving every opportunity and indulgence to them to settle the matter or otherwise pay off the decree amount. In the other application, the petitioners contended that the properties mentioned in that petition fell to their branch and the decree-holder illegally took possession of their lands and therefore they were entitled to be put in possession of the same. The decree-holder denied the allegations and stated that the aforesaid properties fell to the share of the other branches and therefore bad been rightly sold and legally taken possession of by them. The learned Subordinate Judge held that the sale was void as notices under Order 21, Rule 22, Civil P. C., were not served on defendants 8 to 10, that the sale was also vitiated by fraud and material irregularities which resulted in substantial injury to the judgment-debtors and that the suit was in time. In the result he set aside the entire sale. In E. A. No. 44 of 1944 he directed re delivery of the properties claimed in that petition. The decree-holder has preferred the above two civil miscellaneous appeals.
2. It will be convenient at the outset to clarify the position so that our attention may be concentrated on the main point that arises in the case. It is not disputed that there was a partition between the four branches. It is equally clear that there was no partition inter se between the members of each branch. The execution proceedings show that the properties that fell to the share of Bhaskara Rao were not brought to sale as he became insolvent. We are therefore only concerned with the properties pertaining to the shares of the other three branches. Whether there was a division by metes and bounds or in status, the decree-bolder was certainly entitled to bring to sale the shares of the different branches and the sale having been confirmed and the concerned parties not having taken any steps for setting aside the sale it is not now open to defendants 8 and 10 to question the sale in respect of the shares of the other two branches. Even in regard to the undivided share of defendant 7 in the family properties, the petitioners are not in a better position. Under Hindu law the sale of a share of an undivided member of a joint Hindu family is valid, and as the necessary notices were admittedly served on defendant 7 and he not having taken any steps to set aside the sale before confirmation, he is also equally precluded from questioning the sale, Assuming that the application filed by the defendants 8 and 10 to set aside the sale was filed on his behalf also, it would be hopelessly barred by limitation. The allegations of fraud made in the petition to get over the plea of limitation are vague, and the evidence adduced in support thereof does not bear out the case of fraud. Section 18, Limitation Act, is the governing section. Under that section, to take advantage of the extended period of limitation, the petitioner will have to allege and prove that by means of fraud be has been kept from the knowledge of his right to make an application. In this case, notices were admittedly served on the defendants other than defendants 8, 9 and 10. Some of them filed applications for setting aside the sale, but did not pursue the matter. They knew of the sale proceedings from the beginning to the end. It is impossible to contend that they were kept out of the knowledge of the right to apply for setting aside the sale by the fraud of the decree-holder. Even the evidence adduced in support of the fraud is very vague. It is said that a kind of a confidence trick was played upon the judgment-debtors. From 1938, according to the evidence, they were encouraged to hope that the matter would be settled and in that hope and on account of their implicit confidence in the decree-holder and his maternal uncle Nageswara Rao, they allowed the sale to be held and did not take any proceedings to set aside the sale as they believed the matter would be settled in spite of the sale. We have gone through the evidence carefully and we are not satisfied that any fraud was perpetrated on the judgment-debtors. Indeed, even if the entire evidence was accepted, it would only show that there were some genuine attempts at compromise between the parties. In any view, as we have held that it is not open to the judgment-debtors other than defendants 8, 9 and 10 to question the sale, it is not necessary to express our final opinion on the matter.
3. The main question, therefore, that arises in the appeals is whether the sale of the interests of defendants 8, 9 and 10 was a nullity as contended by them. A few admitted facts may be recapitulated. Defendant 8 attained majority on 16th August 1936 and defendant 10 on 25th April 1940. Defendant 9 also only attained majority some time before the sale. Notices under Order 21, Rule 22, Civil P. C., were, admittedly, not served on them. During the entire proceeding that took place before the sale, notice of the proclamation of the sale was received by defendant 8 as disclosed by Ex. D. 9 (a). Defendant 7 is the eldest brother of defendants 8, 9 and 10 and it is not disputed that notice under Order 21, Rule 22, Civil P. C. was served on him and he took part in the various proceedings that led up to the sale. Mr. Somasundaram, learned counsel for the appellant, argued that defendant 7 was the manager of his branch of the family and, as the notice under Order 31, Rule 22 was served on him representing his branch, the sale was good, and that, in any view, as defendant 7 and the members of the other branches of the family who were equally interested with defendants 8 and 9 admittedly took part in the procedings, there is sufficient representation of the interest of defendants 8, 9 and 10. Mr. T.M. Krisbnaswami Aiyar, on the other hand, contended that defendant 7, though the eldest brother of defendants 8, 9 and 10, did not represent the minors at any time as the father represented them when he was alive, and, after his death, the mother was appointed as their guardian, that, after the decree was obtained, the proceedings thereafter were governed by the Civil Procedure Code, that, as the mother represented him as guardian, defendant 7 could not be, by reason of his personal law, entitled to represent his brothers without an express order of the Court, and that the sale without the requisite notice under Order 21, Rule 22 on the persons concerned would be a nullity as the service of the said notice only would confer jurisdiction on the executing Court to sell the properties,
4. In support of their respective contentions a long catena of cases has been cited on either side. To appreciate the principles governing the present case, it will be convenient to consider the said decisions. In Kunhammad v. Kutti, 12 Mad. 90, a Mohammadan woman died leaving her husband and several minor children as her representatives. In execution of a money decree obtained against her, the creditor attached certain land which belonged to her and made her husband and two of her children parties to the execution proceedings. The land was sold and purchased by the decree-holder. Her children brought a suit to set aside the sale on the ground that some of them were not parties to the proceedings in execution and the others, being minors at the time; had not been represented by a guardian appointed by the Court. The learned Judge held that the sale was valid. It was found in that case that though there was no formal order appointing the father as guardian, he in fact represented the minors. The principle on which that decision really turned was that the father, being in possession of the properties, was the legal representative of his deceased wife within the meaning of Section 234, Civil P. C., and therefore her estate was properly represented. In Khiarajmal v. Daim, 32 Cal. 296 : 32 I. A. 23 the Judicial Committee held that where a Court had no jurisdiction to sell the property of persons who are not parties to the proceedings or properly represented on the record, the decrees and sales purporting to be made would be a nullity as against such persons and might be disregarded without any proceedings to set them aside. In Ganesh Row v. Tuljaram Rao, 36 Mad. 295 : 40 I. A. 132, the question for consideration was whether a compromise made by the father pending a suit without the knowledge of the Court when his minor son was represented by another guardian was valid. The Judicial Committee held that the powers of the father were controlled by the provisions of Section 462 of the Code and that he could not, without leave of the Court, do any act in his capacity of father or managing member of the joint family Which he was debarred from doing as guardian ad item, This was relied upon by the learned counsel in support of his argument that as the minors were represented by their mother as guardian, defendant 7 could not represent them in his capacity as manager even if he was in fact a manager.
5. A Full Bench of this Court had to consider in Bajagopala Aiar v. Ramanujacha-riar, 47 Mad. 288 : A. I. R 1924 Mad. 431, the validity of a sale without giving notice under Order 21, Rule 22, Civil P. C. In that case, at p. 01, the learned Judges held that a proper notice under Order 21, Rule 22, Civil P.O., was the very foundation of the jurisdiction itself and that failure to give it would render a sale inoperative even against a stranger and that therefore the sale held in that case was a nullity. The decision in Ramanathan Chettiar v. Ramanathan Chettiar, so : AIR1929Mad275 does not lay any different principle. A careful reading of the judgment discloses that the learned Judges in that case made a distinction between a notice under Order 21, Rule. 22 and the execution proceedings subsequent to that stage. The relevant facts in that cage are that defendant 14 was the father of defendants 15 to 17 and they constituted a joint family. In the suit by the creditor, defendants 15 to 17 were impleaded as minors with defendant 14 as their guardian. A decree was passed against them. In the execution petition they were described as minors represented by their father (defendant 14), though by that time defendant 15 had attained majority. He was not declared a major and he continued to be represented by defendant 14 as his guardian. Notice under Order 2l, Rule 22 was served on him. The sale was posted to 5th August 1924, and, on the same day, defendant 14 died. The legal representatives of defendant 14 being defendants 16 to 17, they were brought on record as his legal representatives. The sale was concluded on 11th August 1924, In an application to set aside the sale, it was argued that as defendant 15 was a major at the time of the execution petition, he should have had a separate notice and that after defendant 14 died and thus ceased to represent defendants 15 to 17, fresh notices should have been issued to them, The learned Judges negatived the contention that fresh notice under Order 21, Rule 22, Civil P.C., should have been taken on defendant 15 on the grounds that notice was served on defendant 14 representing himself and his minor sons. They also indicated that such notice was valid, and that, if defendant 15 became a major, it was his duty to bring it to the notice of the Court and declare himself as a major. As regards the subsequent proceedings, the learned Judges made the following observations at p. 1004:
'The general principle laid down by the authorities to which we shall refer is that an initial notice under Order 21, Rule 22, when issued, is sufficient for the purpose of the law to bring to the 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 Order 21, Rule 22 is not requited by law.'
At p. 1007 the same idea is expressed in a different manner:
'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 in by the wrong procedure.'
As defendant 15, the major, was on record, and as he represented the estate, the learned Judges held that the sale was valid. Far from supporting the case of the appellant, this decision lays down that the notice under Order 21, Rule 22, is a condition precedent for conferring jurisdiction on an execution Court to sell the property. In that case the initial notice was served on defendant 14 for himself and as the guardian of defendants 15 and 17. In the present case, admittedly, no notice under Order 21, Rule 22 was served on defendants 8 to 10. Indeed they were declared as majors and no further steps were taken to serve the requisite notice on them. In Kondarama Reddiar v. Parthasarathi Aiyangar : AIR1939Mad5 also the same principle is laid down. Where notice of the execution petition was taken out to a person as a minor represented by his father, though at that time actually was a major, but the fact was not known to the Court nor to the decree-holder, it was held that such notice was sufficient compliance with the requirements of O 21, Rule 22, Civil P. C., and that no question of jurisdiction arose. At p. 95, King J. puts the view as follows:
'To us there seems to be a very clear distinction between a case in which no notice is issued at all to a particular defendant and a case in which notice is issued to him as if he were still a minor, the reason for issuing such notice being that both the decree-holder and the Court were unaware of the true age of the defendant. We think that to issue each a notice is a sufficient compliance with the requirements of Order 21, Rule 22, Civil P. C.'
6. The next case cited is Bachoo Prasad v. Gobardhan Das, A. I. Rule (27) 1940 Pat. 62 : 187 I. C. 492. The facts in that case are : In a suit against members of the joint family the minor members were represented by a pleader M. appointed by the Court to be their gnardianfad litem, but in the execution petition no reference was made to the above named pleader. Execution was sought to be taken against the minors describing them as under the guardianship of the minors' father one Gobardhan. No notice was taken to the Court guardian under Order 21, Rule 22. The learned Judges held that the sale held without such notice was a nullity. At p. 64 the learned Judges point out :
'Ones the Court has found that the legal conditions do not exist for proceeding with an execution, then there is a lack of jurisdiction in the carrying on of that execution; and all the proceedings taken in the execution which was not properly contested in the absence of proper notice under Order 21, Rule 22 must fall to the ground.'
In Venkataranga v. Seethamma, A. I. R. 1941 Mad. 440 : 200 I. C. 27 it was held that the creditor who impleads the sons also in the suit against the father and obtains a decree against their shares in the family estate cannot claim to proceed against such shares in the execution of the decree against the father when it can no longer be executed directly against them owing to the bar of limitation. The learned Judges held that though the father was precluded from raising the plea that the decree was barred, aa he did not oppose the execution application against him, the sons could rely upon the plea of limitation in so far as they were concerned. The reason of the rule is stated at p. 444 :
'When the son is joined in the suit and a decree is obtained binding his interest also, the claim against him based upon his obligation must necessarily be deemed to have been put in suit and merged in the decree, and the only mode of enforcing such claim is as it seems to us, by executing the decree against him, The matter is no longer governed by the Hindu law but by the relevant provisions of the Civil Procedure Code.'
This decision also was relied upon in support of the contention that defendant 7 could not in his capacity as a manager represent the interests of defendants 8 to 10 as they were represented by their mother till they were declared majors. In Deo Narain Singh v. Bibi Khatoon, : AIR1949Pat401 it was held that no fresh notice under Order 21, Rule 22, Civil P. C. was necessary as an application for the amendment of the execution by reason of other properties was not a fresh application.
7. The following principles emerge from a consideration of the aforesaid decisions: (1) Notice under Order 21, Rule 22, Civil P. C. is a necessary condition for conferring jurisdiction upon the executing Court to sell the judgment-debtor's properties, and a sale without such notice is a nullity. (2) If the initial notice under Order 21, Rule 22 was served on the parties, the sale would not be void even though at the later stages notice was not served on all the parties, if as a matter of fact the estate was sufficiently represented by any one of the parties. (3) The sale would be valid if the notice under Order 21, Rule 22 was served on a person who was held by the Court to be the representative of the deceased party, even though it subsequently turned out that he was not the real or only representative of the deceased party: (4) After a decree is passed, the question of representation of a party is no longer governed by Hindu law but by the relevant provisions of the Civil Procedure Code.
8. Bearing these principles in view, we shall now consider their application to the facts of this case. In the suit defendants 8 to 10 were represented by their father. There was a decree for the payment of money against the assets in their hands. After their father's death, they were represented by their mother. Admittedly, no notice was served on them represented by their guardian. They were declared majors, and, thereafter, :no notice under Order 21, Rule 22, Civil P. C. was served on them. Though defendant 7 was the eldest brother, there is some evidence in this case that the property of defendants 8 to 10 was being managed only by their mother. In any event, defendant 7 as a matter of fact never represf nted them. No notice was served on him in his representative capacity. It therefore follows that the sale of the family properties so far as defendants 8 to 10 are concerned was a nullity, and it is open to them to ignore it.
9. It is then argued that the application was barred by limitation. It is conceded that if the sale was a nullity the proper article of the Limitation Act applicable is the residuary Articl 181.| Article 181. Limitation Act reads as follows :
'Description Period Times from whichof of period beginsapplication limitation. to run.181. Application forwhich no period oflimitation is pro- When the rightvided elsewhere in Three years. to applythis schedule or by accrues.' S. 48, Civil P. C.,1908.
10. Therefore, under the aforesaid article, the application should have been filed within three years when the right to apply accrued. The question therefore is when did the right to apply accrue. If the sale was a nullity, defendants 8, 9 and 10 could ignore the sale. Till their possession was effectively interfered with, they need not take note of a void sale. In this view, the right to apply accrued to them only when the decree-holder took possession of the properties in July 1942. So viewed, the application is clearly within time. A similar question was considered by Ananthakrishna Aiyar J. in Chengalfraya v. Kollapuri : AIR1930Mad12 . In that case a sale was without service of notice under Order 21, Rule 22, Civil P. C. and the decree-holder who purchased the property obtained symbolical delivery of the land. At p. 15, the learned Judge says:
'In cases where sales are held to be void, appropriate relief could be obtained by parties to the suit by proceeding under Section 47, the period of limitation being not the period prescribed for setting aside of sales but general period of three years prescribed by Article181. It excess sale is void, and no notice need be taken of the same by any parties to the suit, until their rights are actually infringed I fail to see how excess execution could have any higher effect... he was not bound to apply to have the order relating to excess delivery Bet aside. If he could ignore that order, as he could have ignored the excess sale itself, what then is the real act by which be is aggrieved; in other words, when does the tight to apply accrue to him within the meaning of Article181, Limitation Act? So long as he was in possession, it did not matter to him what orders of excess sales or excess deliveries were passed behind his back. I think the lower appellate Court was right in its finding that Article 181 applied and that the application was not barred.'
We respectfully agree with the observations of the learned Judge and we hold that the right to apply in the present case accrued to the petitioners only when their possession was interfered with in 1942, and, therefore, the application was clearly in time.
11 A. A. O. No. 614 of 1946: Coming to C. M. A. No. 614 of 1946 we do not see any arguable point. If the properties that fell to the share of Bhaskara Rao were not brought to sale but they were taken possession of by the decree-holder purchaser, his legal representatives were certainly entitled to get a re-delivery of the same. The learned Subordinate Judge in the circumstances directed re-delivery and we do not see any reason to interfere.
12. The result of our decision would be that the sale of the interests of defendants 8, 9 and 10 in the family properties would be a nullity. The sale of the share of defendant 7 in the properties that fell to the share of his father, Triyambaka Rao, and the sale of the properties that fell to the share of the two brothers Auanda Rao and Krishnamurti would be valid. It is in evidence that there was a partition between the four branches and therefore there was no difficulty in excluding the properties that were allotted to Bhaskara Rao at the alleged partition. But in regard to the one-fourth share in the property allotted to the fourth branch, it would be necessary to take appropriate proceedings for a partition inter se between defendants 7, 8, 9 and 10. Both the learned counsel appearing for the parties, in the interests of speedy adjudication, are willing and indeed anxious to get the properties divided in these proceedings themselves. We therefore remand E. A. No. 1035 of 1942 to the lower Court for effecting a partition between defendants 7, 8, 9 and 10. In other respects, C. M. A. No. 634 of 1946 is allowed with proportionate costs. C. M. A. No. 614 of 1946 is dismissed with costs.