1. This second appeal arises out of an application made by the respondent No. 1 before us, Surendra Nath Das, to set aside an execution sale.
2. The relevant facts are as follows:--The respondent No. 2, as landlord, obtained on the 9th February 1915 a decree under the Bengal Tenancy Act for arrears of rent in respect of a holding of which three adults, Dinu Das, Thakardas Das, and Rupai Das, and a minor, Surendra Nath Das, were co-tenants. It appears that these parsons were members of the same family, though their precise relationship is not apparent on the record. I will say at once that Surendra Nath Das was at all material times a minor and still appears as such on the record, though he may now have attained his majority. He was represented in the suit by his mother as his guardian ad litem, and it is not disputed that the decree was a good and valid decree as well against the infant as against the adult defendants. The mother of the infant died on the 9th October 1916. The decree holder apparently was not aware of this death. An application for execution was filed in 1917 in which the mother's name appears as the minor's guardian. A notice was issued under Order XXI, Rule 22, addressed to the adult co-tenants and to the minor and his mother. On the book of the notice there is an affidavit by the serving peon that it was delivered, at the house at which all the co-tenants were living, to Surendra Nath, then apparently about thirteen years old. The holding was sold by public auction on the 19th May 1917 and was purchased for Rs. 250 by the appellant, a third party having no connection with the parties to the suit.
3. The proceedings which followed are somewhat surprising and illustrate the difficulties with which decree-holders have to contend in this country, First on the 19th June 1917, the judgment-debtor No. 1, Dinu Das, applied to have the sale set aside. That application was dismissed on the 1st September 1917, the sale being confirmed on the same day. Possession was delivered to the auction purchaser, the present appellant, on the 4th December 1918. On the 6th July 1919, however, the judgment debtors Nos. 2 and 3, undeterred by the failure of the judgment debtor No. 1, made a second application to have the sale set aside. The application met with the same fate as its predecessor and was dismissed on the 6th July 1919, It is scarcely credible but a third application for the same purpose--the application with which we are now concerned--was made by Surendra Nath, represented by his brother-in-law as his next friend, on the 21st July 1919. The application was thrown out by the Court of execution, but on appeal to the District Judge's Court it succeeded. The success so obtained proves at any rate the virtue of persistence. The bare statement of the facts sufficiently explains why the case turns not on the merits but on points of form.
4. The judgment of the learned Munsif, dismissing the application, is brief. The adult co-tenants had not been made parties to the proceeding and he held that they ought to have been brought on the record under the proviso to Order XXI, Rule 92(2). In the view we take it is unnecessary to express an opinion whether the learned Munsif was right in that respect. He went on to say that the omission to appoint a guardian ad litem for Surendra Nath Das after the death of his mother was in repeat of the execution proceedings an irregularity which made the sale not void but merely voidable.
5. The learned District Judge, however, on the appeal preferred by Surendra Nath, was of a different opinion. He held that the omission to have a guardian appointed for the minor in the execution proceedings was not merely an irregularity but an illegality which vitiated the sale, and that, apparently, not only as regards the minor's one-fourth share of the holding but as regards the entirety. He further held that no notice had been legally served upon the minor under Order XXI, Rule 22, and that this omission was also fatal to the validity of the sale.
6. With great respect to the learned Judge 1 am unable to agree with him. He relied mainly on the case of Khiarajmal v. Daim 32 C. 296 at p. 314 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1 : 2 C.W.N. 201 : 321 I.A. 23 : 8 Sar. P. C.J. 784 (P.C.) which appears to me clearly distinguishable. There a decree had been made and it was sought to make liable under the decree an infant who had not been properly represented at any time during the course of the suit. Even, however, in that case their Lordships made this observation: 'The Indian Courts have properly exercised a wide discretion in allowing the estate of a diseased debtor to be represented by one member of the family, and in refusing to disturb judicial sales on the mere ground that some members of the family, who were minors, were not made parties to the proceedings, if it appears that there was a debt justly due from the deceased, and no prejudice is shown to the absent minors,' A concise commentary on their Lordships' decision will be found in the judgment of Sir Arnold White, C.J., and Mitter, J., in Ramaswani Chettiar v. Oppilamani Chetti 4 Ind. Cas. 1059 : 33 M. 6 : 6 M.L.T. 269 : 19 M.L.J. 671 A judgment-debtor had died during proceedings in execution and a representative, who was not the true legal representative, had been brought on the record in his place. It was contended that the proceedings had in execution were of no effect against the latter. The learned Judges said: 'We do not find anything in the judgment of the Privy Council in Khiarajmal v. Daim 32 C. 296 at p. 314 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1 : 2 C.W.N. 201 : 321 I.A. 23 : 8 Sar. P. C.J. 784 (P.C.) to compel us to accept this contention. Their Lordships recognise that representation for the purposes of litigation may be incomplete and yet sufficient, and though they confine their observations on this point to cases in which all the representatives are the members of a family, the case before them being of that kind, they do not lay it down that those cases exhaust the matter, but rather indicate that the sufficiency of the representation may be in part a question of fact.' The decision of the Court, as stated in the head-note, was as follows: 'A decree-holder who has to apply for execution against the legal representative of the deceased judgment debtor may select, from among several rival claimants, as legal representative, the one whom he believes honestly to have the best prima facie title and the representation, in the absents of fraud or collusion, will be sufficient, even though it is subsequently found that some other person is the true legal representative'. In other words, that case was decided upon the principle which had already been applied by their Lordships of the Privy Council in the familiar case of Malkarjun v. Narhari 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 2 Bom. L.R. 927 : 10 M.L.J. 368 : 7 Sar. P.C.J. 739 (P.C.). The present case seems to me an even stronger case. Here the judgment-debtors were co-tenants of one holding, sold under the Bengal Tenancy Act for arrears of rent in execution of a decree admittedly binding on all the co-tenants. A notice was, in fact, issued under Order XXI, Rule 22, addressed to all the co-tenants. There is nothing to suggest that there was any divergence of interest among the co-tenants. They were living in the same homestead, and it seems to me a refinement of technicality to say that all the co-tenants were not duly notified that the decree was to be executed.
7. It is true that Surendra Nath's mother had died and that at the stage of execution he had in fact no guardian on the record. But as I have always understood the matter, the provisions of Order XXXII relating to 'Suits by or against minors' have no direct application in proceedings in execution after the rights of the parties have merged in a good and valid decree. At any rate the rules in Order XXXII are not sO strictly applied at that stage. The 'lis' in respect of which it is essential that a minor defendant should be represented by a duly appointed guardian is at an end and execution having taken place, in determining whether the minor was sufficiently represented in the execution proceeding, the Courts are at liberty to look at the substanse of the transaction.
8. No doubt it is settled that the notice required by Order XXI, Rule 22, is necessary to give jurisdiction to sell in execution. Such notice is required by one of the special provisions relating to execution. In the present case, as I have indicated, Rule 22 was in my opinion sufficiently complied with and if the fact that Surendra Nath had no guardian is treated not as an illegality but as an irregularity, the case comes within Order XXI, Rule 90, and fraud not being suggested, before the sale can properly be set aside, the Court must be 'satisfied that the applicant has sustained substantial injury by reason of such irregularity.'
9. I may add that in Tekait Krishna Prasad Singh v. Moti Chand 19 Ind. Cas 296 : 40 C. 665 : 17 C.W.N 667 : (1913) M.W.N. 487 : 11 A.L.J. 517 : 17 C.L.J.573 : 15 Bom. L.R. 515 : 14 M.L.T. 37 : 25 M.L.J. 140 : 40 I.A. 140 (P.C.), where in execution a minor defendant was unrepresented by a guardian, there were other serious irregularities and it was expressly held by their Lordships that 'the infant appellant sustained substantial injury through such irregularities.' The non-representation of the infant by a guardian was not treated as being in itself a sufficient ground for avoiding the sale.
10. In the present case the judgments dismissing the previous applications by the judgment-debtor No. 1 and the judgment debtors Nos. 2 and 3 were not placed before us, and nothing has been said in argument to lead us to think that Surendra Nath has suffered any substantial injury by reason of the irregularity complained of. Having regard to the whole history of this case, in my opinion, it would serve no useful purpose to remand this case for a further enquiry upon that question. It is surely time that litigation in regard to this sale earns to an end. It is such proceeding as are disclosed in the present case which ten to lower the price obtained at sales in execution.
11. In conclusion I may observe that the learned District Judge has recorded no opinion on the effect of the non-compliance by Surendra Nath with the proviso to Order XXI, Rule 92(2), In the view he took he should have dealt with that question inasmuch as the Munsif had treated the omission as an independent ground for dismissing the application.
12. The result is that I would allow this appeal, set aside the order of the lower Appellate Court and restore that of the Court of first instance with casts here and in the lower Appellate Court. The costs are payable by the judgment-debtor Surendra Nath Das personally if major, and out of his estate if he is still a minor. We assess the hearing fee in this Court at two gold mohurs.
Lancelot Sanderson, C.J.
13. I agree.