1. The main question for consideration in this appeal is whether the sale in execution of the property of the deceased judgment-debtor is a mere irregularity or a nullity. It appears that in this case an order for the sale of the judgment-debtor's property was made and that before the sale took place, the judgment-debtor died. His legal representative were not impleaded. There are two cases of this Court which are exactly applicable, one reported in Raghunathaswami Iyengar v. Gopaul Rao 15 L.W. 12 and the other in Doraisami v. Chidambaram Pillai 75 Ind. Cas. 46 : 45 M.L.J. 413 : (1923) M.W.N. 817. The decisions being directly opposed to, one another, it is suggested for the appellant that in view of this difference of opinion this second appeal should be referred to a Bench but, as I will explain, I do not think that is necessary.
2. In Raghunathaswami Iyengar v. Gopaul Rao 68 Ind. Cas. 667 : 41 M.L.J. 547 : (1921) M.W.N. 732 : 15 L.W. 12 : A.I.R. (1922)(M.) 307 Oldfield and Ramesam, JJ., held that the sale in execution which took place after the death of the judgment debtor without bringing in legal representatives on record was a nullity. Spencer and Krishnan, J. in Doraiswami v. Chidambaram Pillai 33 M.L.T. 25 : (1923) M.W.N. 817 : (1924) A. I.A. (M.) 130 held exactly the contrary. The Full Bench decision in Rajagopala Aiyar v. Ramanujachariar 80 Ind. Cas. 92 19 L. W. 179 : (1924) M.W.N. 182 : 34 M.L.T. 37 does not in terms decide the point at issue but it did hold, overruling Doraiswami v. Chidambaram Pillai 75 Ind. Cas. 46 (1924) A. I.A. (M.) 130, that an omission to give notice under Order XXI, Rule 22 renders a sale held in execution a nullity. It does, in effect, deal with the present question at issue, although in that case the judgment-debtor was not, Head but no notice was issued in accordance with Order XXI, Rule 22. The question is, however, definitely decided by the Privy Council in Raghunath Das v. Sunder Das Khetri 18 C.W.N. 1058 (1914) M.W.N. 747 :13 A.L.J. 154 . That was a case, where after the sale had been proclaimed and had even been adjourned to a further date, the judgment debtor became an insolvent. Notice was given to the Official Assigned but the notice apparently was merely a notice asking him whether he would come on record and it was not a notice that execution would proceed against him It was there held that inasmuch as the property passed by operation of law from the judgment-debtor to the Official Assignee, execution could not proceed until the Official Assignee had been brought before the Court and an order binding on him had been obtained. Their Lordships further remark that 'a notice under Section 248 of the Code (corresponding to Order XXI, Rule 22) is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representatives of a deceased judgment-debtor.' No distinction can be drawn between the civil death of a judgment-debtor as the result of insolvency and the actual death of the judgment-debtor and the effect would appear to be exactly the same. When the sale in this suit was held, the judgment-debtor in whom the property had vested was dead and consequently the property could no longer vest in him and there could be no sale of his property, but only of property which had been his before his death. The property that was sought to be sold is property which at the date of the sale had become vested in the legal representative of the debtor and in as much as that legal representative was not on record, there could be no valid sale as against him. Provision for executing decrees after the death of the judgment-debtor is contained in Section 50 of the C.P.C. which provides that the decree-holder may apply to execute them against the legal representatives. I do not think that T need discuss the question whether execution can be taken against a deceased man, for that is not possible. He cannot be arrested and he has no longer any property to be proceeded against. Therefore, the only remedy for a decree-holder is to proceed against the legal representatives as possessing the assets of the deceased and then the provisions of Order XXI, Rule 22 must be applied. If they are not complied with, we, have the authority of the Privy Council and a Full Bench of this Court to the effect that the sale is a nullity. The question is thus concluded by authority and the difference of opinion between two Benches of this Court does not render it necessary for me to refer this case to a Bench. I must follow the decision of the Privy Council, in Raghunath Das v. Sunder Das Khetri 16 Bom. L.R. 814 : 20 C.L.J. 555 : 41 I.A. 251 (P.C.) and accordingly I confirm the finding of the lower Court that the sale was a nullity.
3. Further, an argument is put forward by the appellant that the finding of the lower Appellate Court that the brothers were divided is wrong in law. The Subordinate Judge relies on oral evidence and the circumstances of the case for arriving at this finding, and that evidence is not before me and, I am not, therefore, in a position to say that there was no evidence on which his finding could be based. Being a finding of fact, I must accept it. The second appeal is accordingly dismissed with costs.