1. This matter was referred to a Division Bench by Biswas J. on account of the fact that there appears to be a conflict of judicial opinion with regard to the main point which requires our decision. One of the defendants is the appellant in this case and the appeal is directed against the decision of the learned District Judge of Faridpur, dated 24th March 1939. It appears that in Suit No. 521 of 1928 the Maharaja of Cossimbazar obtained a rent decree against Jainuddin Talukdar, the predecessor-in-interest of the appellant. In the rent suit the Maharaja had also impleaded the other cosharer landlords. Subsequently, the rent decree was as-signed to the father of the plaintiff who, on 19th September 1931, initiated execution proceedings with reference thereto after serving the judgment-debtor with the notice required under Order 21, Rule 16, Civil P.C. On 13th October 1931 Jainuddin Talukdar died. The fact of his death apparently was not brought to the notice of the decree-holder with the result that Jainuddin Talukdar's legal representatives were not brought on the record in connexion with the subsequent proceedings in execution. The sale proclamation is said to have been published on 18th January 1932 and the execution sale was held on 24th February 1932. Symbolical possession was taken by the plaintiff's father on 6th April 1935, but subsequently he made a gift of the holding to the plaintiff who was resisted by the heirs of Jainuddin Talukdar when she attempted to take actual possession of the property. She therefore instituted the suit out of which this appeal arises for a declaration of her title and for recovery of khas possession of the property which she claimed by virtue of the sale which took place on 24th February 1932.
2. The case for the defendants was to the effect that the execution sale was a nullity having regard to the fact that the heirs of Jainuddin Talukdar had not been brought on the record of the execution proceedings after his death. Both the Courts below decided, that on the authority of the case in Tarangini Debi v. Raj Krishna Mandal ('28) 115 I.C. 520 the sale, dated 24th February 1932, was merely voidable at the instance of the defendants in appropriate proceedings under Section 174, Ben. Ten. Act, and as such proceedings had not been taken, the plaintiff was entitled to the decree which she sought. The only-point which has been urged in connexion with this appeal is that the Courts below were wrong in holding that the sale, dated 24th February 1932, was voidable, but that it should have been held that this sale was wholly void on account of the failure of the decree-holder to bring the heirs of Jainuddin Talukdar on the record after the latter's death on 13th October 1931. Mr. Nausher Ali on behalf of the appellant contends that it was incumbent upon the decree-holder, if she wished to proceed with the execution of the decree against the legal representatives of Jainuddin Talsikdar, to substitute them on the record under the provisions of Section 50, Civil P.C. He also contends that in this particular case there had been failure to comply with the provisions of Order 21, Rule 22 of the Code. Mr. Das, on the other hand, contends that in a case in which it is sought to execute a rent decree it is not necessary to substitute the legal representatives of a deceased judgment-debtor. He argues that Section 50, Civil P.C., is merely permissive and, in any event, the view that an execution sale such as the one with which we are now dealing in merely voidable is supported by the authority of Sir George Rankin's judgment in Tarangini Debi v. Raj Krishna Mandal ('28) 115 I.C. 520.
3. During the course of his argument, Mr. Das referred to the provisions of Order 22, Rules 4 and 12, Civil P.C. It is of course true that the death of a judgment-debtor will not cause a pending execution proceeding to abate, but at the same time, it is dear from Section 50 of the Code, that if the holder of an unsatisfied decree wishes to continue the execution proceedings or wishes to execute the decree against the legal representatives of a deceased judgment-debtor, he must make an application to this effect to the Court. Further, the language of Order 21, Rule 22 of the Code implies that, when an application is made under Section 50 of the Code, the legal representative of the deceased person must be called upon to show cause why the decree should not be executed against him. The mere fact that, in connexion with a rent decree, execution proceedings are taken against the holding of the deceased person makes no difference. The holding represents a portion of the estate of the deceased judgment-debtor and the latter's heirs are, therefore, entitled to be brought on the record of the case and to receive the notice which the law requires in order that they may be given an opportunity either to satisfy the outstanding decree or to show cause why execution should not proceed.
4. In support of his argument to the effect that the execution sale, dated 24th February 1932, was merely voidable Mr. Das mainly relies upon the decision of this Court in Tarangini Debi v. Raj Krishna Mandal ('28) 115 I.C. 520 cited above. The judgment of Sir George Rankin in that case is dated 15th August 1927. The learned Chief Justice held that, although it is proper to bring the heirs of a deceased judgment-debtor on the record, failure to do so should be regarded merely as an irregularity. His Lordship referred to several cases during the course of his judgment, but apparently his attention was not directed to a decision of the Privy Council in Raghunath Das v. Sundar Das Khetri ('14) 1 A.I.R. 1914 P.C. 129. In that case it was held that where there had been a devolution of property by reason of insolvency the Official Assignee as the legal representative of the insolvent was entitled to receive a notice under Section 248, Civil P.C. (which corresponds to Order 21, Rule 22(1) of the present Code), and that failure to serve such a notice rendered inoperative any sale in execution of a decree against the original judgment-debtors. Their Lordships observed that:
As laid down in Gopal Chunder v. Gunamoni Dasi ('93) 20 Cal. 370 a notice under Section 248 of the Code is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor.
5. Recently, this question has been fully discussed by a Full Bench of the Madras High Court in Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib ('36) 23 A.I.R. 1936 Mad. 205. The learned Judges appear to have been unanimous in holding that an execution sale was void and not merely voidable in a case in which no application had been made under Section 50, Civil P.C., to execute a decree against the legal representatives of the deceased judgment-debtor and where no notice had been served on such legal representatives in accordance with Order 21, Rule 22(1) of the Code. After discussing the effect of the judgment of the Privy Council in Raghunath Das v. Sundar Das Khetri ('14) 1 A.I.R. 1914 P.C. 129, Cornish J. pointed out at page 473 that:
On this authority, I think, there can be no doubt that, where there has been no application under Section 50, and consequently no issue of notice under Order 21, Rule 22(1), the foundations of the Court's jurisdiction to execute a decree against the legal representative are entirely wanting. And a sale held without this jurisdiction would be void.
6. We entirely agree with the view which has been adopted with regard to this matter by the Madras High Court in Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib ('36) 23 A.I.R. 1936 Mad. 205 and we think that it is not unlikely that the decision in Tarangini Debi v. Raj Krishna Mandal ('28) 115 I.C. 520 might have been different had the attention of the learned Judges been directed to the judgment of the Judicial Committee in Raghunath Das v. Sundar Das Khetri ('14) 1 A.I.R. 1914 P.C. 129 cited above. It follows, therefore, that this appeal must be allowed with costs throughout. The plaintiff's prayer for khas possession is refused and her suit is dismissed without prejudice to any right which the plaintiff may hereafter claim as landlord of the disputed holding.
Mohamad Akram, J.
7. I agree.