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

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in117Ind.Cas.705
AppellantM.L.M. Ramanatham Chettiar
RespondentRamanathan Chettiar and ors.
Cases ReferredPasumarti Payidanna v. Ganti Lakshminarasamma
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 22, order xxii, rule 4, order xxxii, rule 5 - mortgage-suit--father and minor sons with father as guardian ad litem judgment-debtors--eldest son major on date of execution application, but continuing on record as minor--father's death on date of sale--fresh notice to son, if necessary--sale, whether illegal--order xxii, rule 4 and order xxxii, rule 5, applicability of, to execution proceedings. - 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. no. 487 of 1925 obtained by assignment. the mortgage was over six villages of the sivaganga zemindari, the mortgagors being the daughters of the late zemindar at the court sale, the mortgagee-decree-holder, who is the appellant in c.m.a. no. 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. no. 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 nos. 15 to 17. these claim that the.....
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. No. 487 of 1925 obtained by assignment. The mortgage was over six villages of the Sivaganga zemindari, the mortgagors being the daughters of the late zemindar At the Court sale, the mortgagee-decree-holder, who is the appellant in C.M.A. No. 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. No. 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 Nos. 15 to 17. These claim that the sale was vitiated by illegalities and irregularities which occasioned to them substantial in jury on account of the low price fetched for the property at the sale. The lower Court hap, on their petition E.A. No. 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. Nos. 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, Nos. 15 to 17, were in the execution proceedings represented by their father, the 14th defendant, who has since died. It is clear from the B diary in the execution petition, which is E.P. No. 884 of 1923, dated the 10th October, 1923, that, though the 14th defendant 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 going out as it stood. Other subsequent mortgagees, defendants Nos. 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 in the proclamation was low, nor were any intending bidders examined to say that they even read the proclamation or were misled by any figures given in the valuation.

3. It is next contended that the sale price actually fetched was unduly low.

4. [Their Lordships referred to the evidence and continued.]

5. 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 realised 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.

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

7. On these facts several contentions are put forward by defendants Nos. 15 to 17.

(a) that, as the 15th defendant was a majorat the time of the execution petition he should have had a separate notice thereof.

(b) that, when 14th defendant died, and thus ceased to represent defendants Nos. 15 to 17, fresh notice should have been issued to them.

(c) that, when the 14th defendant filed a fresh guardian should have been appointed for defendants Nos. 16 and 17.

(d) that the after born son should have been brought on and.

(e) that two after born sons of the 15th defendant should have been brought on.

8. Points (d) and (e) may be disposed of at once. The two after born sons of the 15th defendant are in no sense the legal representatives of the 14th defendant, their grand father, while the after born son of the 14th defendant 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 XXII, 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 Nos. 15 to 17 were already on the record. The Subordinate Judge, appears to us to have been wrong in applying Narayana, Ayyay v. Venkataramana Ayyar 25 Mad. 220 F.B. We do not see what bearing that ruling has on this point. We find no substancs in points (d) and (e). 10. Points (a) and (b) may go together. Up to the 5th August, 1924, the interests of the 14th defendant's family as puisne mortgagees were sufficiently represented by the 14th defendant himself. Subsequent to his death, the adult member, the 15th defendant, 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, the sale was held with one adult member of the family, who had not been personally served with notice under Order XXI, 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 the 14th defendants' 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 the 14th defendant's death, the 15th defendant was a major and he and his minor brothers, the 16th and 17th defendants, 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 here 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 the 16th and 17th defendants, 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 14th defendant, a fresh notice should have been issued to the adult 15th defendant. 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 XXI, Rule 22. The general scope of Order XXI, 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.' The omission to issue any notice at all prior to taking out execution under this rule in case where that rule requires it to be done is no doubt an illegality--See Syam Mandal v. Sati Nath Banerjee 38 Ind. Cas. 493 : 44 C. 954 : 24 Cri.L.J. 523 : 21 C.W.N. 776, Kasiviswanathan Chetty v. Somasundaram Chetty : AIR1922Mad93 , which is to the contrary, has been dissented from in the Full Bench decision in Rajagopala Aiyar v. Ramanujachariar : AIR1924Mad431 . 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 page 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 the 14th defendant for himself and as guardian of his minor sons. No doubt the 15th defendant 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 knowledge of the 14th defendant 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 one year before. 14th defendant died, and if the 15th defendant 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 the 15th defendant 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 the 15th defendant 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 an illegality--See Enuga Sundarama Reddi v. Bezwada Pattabhiramireddi 42 Ind. Cas. 421 : 6 L.W. 272 : (1917) M.W.N. 495. In Seshagiri Rao v. Tangaturi Jagannadham 32 Ind. Cas. 391; 39 M. 1031; 19 M.L.T. 93, 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 (1927) M.W.N. 890 : A.I.R. 1928 Mad. 294 : 51 M. 763 : 55 M.L.J. 374 : 29 L.W. 455. Therefore the initial notice to the 14th defendant served on him was sufficient compliance with the law so far as an initial notice was necessary.

10. 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 of the Code of Civil Procedure 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 XXI, 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 : AIR1927Mad184 , nor has such an argument been put forward before us. It, therefore, follows that the proceedings do 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 purposes 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 Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 10 M.L.J. 368 : 27 I.A. 216 : 7 Sar. P.C.J. 739 : 2 Bom. L.R. 927, 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. Oppilamdni Chetti 4 Ind. Cas. 1059 : 33 M. 6 : 6 M.L.T. 269 : 19 M.L.J. 671 and Kadir Mohideen Marakkayar v. Muthukrishna Aiyar 26 M. 230 : 12 M.L.J. 368, and the Privy Council case in which the legal representative was brought on by the wrong procedure. See the decision of the Privy Council case in Jang Bahadur v. Bank of Upper India Limited : (1928)30BOMLR1373 . The Privy Council case in Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 10 M.L.J. 368 : 27 I.A. 216 : 7 Sar. P.C.J. 739 : 2 Bom. L.R. 927, was called in aid in Doraisarmi v. Chidambaram Pillai : (1923)45MLJ413 . 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 Raghunathaswami Iyengar v. Gopauj Rao 68 Ind. Cas. 667 : 41 M.L.J. 517 : (1921) M.W.N. 732 : 15 L.W. 123 : A.I.R. 1922 Mad. 307. This conflict led to the matter being placed before a Pull Bench whose ruling is in Rajagopala Aiyar v. Ramanujachariar : AIR1924Mad431 . 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, the 1st and the 3rd defendants, the bequests being separate and of separate properties. Notice of the execution petition was sent only to the 1st defendant who appears to have been somehow in possession of both the estates. The Full Bench held that as no notice had been sent to the 3rd defendant the sale was void against him. It is clear in that case that the estate of the 3rd defendant was not and could not be represented at all by the 1st defendant and that notice had not been taken to the person against whom execution was sought in respect of that estate. The Privy Council case Raghunath, Das v. Sundar Das Khetri : (1914)16BOMLR814 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 of the old Code of Civil Procedure, which corresponds to Order XXI, 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. 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 representatives' 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 representatives of an insolvent plaintiff Significantly enough the language now used in the corresponding Order XXII, 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 representatives 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 Ayyangar v. Bagirathi Ammal 6 M. 180., Krishnayya v. Unnissa Begam 15 M. 399, Groves v. Administrator-General of Bengal 22 M. 119 : 8 M.L.J. 288, Somandan Karkati Edathil Rayarappan Nambudiar v. Malikandi Aketh Mayan 23 Ind. Cas. 251 : 26 M.L.J. 267, Raghunathaswami Iyengar v. Gopauj Rao 68 Ind. Cas. 667 : 1921 41 M.L.J. 517 : (1921) M.W.N. 732 : 15 L.W. 123: A.I.R. 1922 Mad. 307 and Gopal Chundery. v. Gunamoni Dasi 20 C. 370 are also cases in which no one was left on the record to represent the state. In Karipineni Rajayya v. Kalpatapu Annapurnamma : (1926)50MLJ662 reliance was placed on Raghunath Das v. Sundar Das Khetri : (1914)16BOMLR814 for the proposition that the sale was 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 Tekait Krishna Prasad Singh v. Moti Chand : (1913)15BOMLR515 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 Sections 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. 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 Rule 22, it is not mandatory that notice should also go to others. See Kunhamed v. Kutti 12 M. 90 and Azizannessa v. Dwarika Prosad 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 a 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 hording the estate, the Court has 'seizin' of the estate for purpose of satisfying the decree out of it. It is only when an estate drops beyond the seizin 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 represents and is representing the estate is already on the record, even if ha be a wrong legal representative or a legal representative brought on by the wrong procedure.

11. The 15th defendant 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 hiving a fresh guardian ad litem appointed for his minor brothers, the 16th and 17th defendants. The statutory procedure regarding the representation of minors is laid down in Order XXXII. 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 Bhuian v. Surendra Nath Das 64 Ind. Cas. 25 : 35 Cri.L.J. 9 and Rakhal Chandra Dt v. Kumudini Debya : AIR1927Cal930 : compare, however, the remarks of Sir John Wallis Chief Justice at page 924 of Muthiah Chettiar v. Lodd Govinda Doss Krishna Doss : AIR1921Mad599 . 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 represant the estate and its interests, the mere omission to appoint a guardian for the minor will not invalidate the proceedings. See Khairajmal v. Daim 32 C. 296 : 32 I.A. 23 : 1 Cri.L.J. 584 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 8 Sar. P.C.J. 734 and Nakul Chandra Das v. Rajendra Chandra Gangopadhya : AIR1927Cal873 . Such minors are in fact not even necessary parties, see Sheo Shankar Ram v. Jaddo Kunwar : (1914)16BOMLR810 . Even if the guardian is not the guardian ad litem the proceedings are not void, Jinnat Ali v. Kailas Chandra Chowdhary : 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 Narayana Kothan v. Kaliyanasundaram Pillai 19 M. 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. We do not regard the ruling in Pasumarti Payidanna v. Ganti Lakshminarasanma 29 Ind. Cas. 314 : 38 M. 1076 : 28 M.L.J. 525 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 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-nisa v. Muhammad Ismail Khan 19 M. 219 and Khairajmal v. Dain : AIR1924Cal847 , 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 Pasumarti Payidanna v. Ganti Lakshminarasamma 29 Ind. Cas. 314 : 38 M. 1076 : 28 M.L.J. 525 the Privy Council case in Rashidun-nisa v. Muhammad Ismail Khan 3 Ind. Cas. 864 : 31 A. 572 : 13 C.W.N. 1182 : 10 Cri.L.J. 318 : 6 A.L.J. 822 : 11 Bom. L.R. 1225 : 6 M.L.T. 279 : 19 M.L.J. 631 : 36 I.A. 168 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.

12. 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, the 15th defendant Says that from July 1922, the 14th defendant 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 realise 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 guardain for his minor brother, 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 better figure if the omissions complained of had been supplied.

13. 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. Civil Miscellaneous Appeal No. 137 of 1926 is not pressed, in Civil Miscellaneous Appeal No. 193 of 1925 no case on the merits is urged before us. These are, therefore, hereby dismissed with costs. In this result Civil Miscellaneous Appeals Nos. 135 of 1926 and 107 of 1926 and 143 of 1927 are withdrawn and dismissed. The right, if any of defendants Nos. 19 to 21 to press, their separate petitions under Order XXI, Rule 89 is not affected by this judgment.


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