1. The three plaintiffs in the present suit, the appellants before as, are the sons of one Jadu Nath Nayaratna, deceased. The suit relates to an 8 1/4 anna share of a Sikmi Taluk, Ram Nath Ukil, which share belonged to Jadunath. One of the co sharer landlords, Ishan Chandra Lahiri, brought a suit for arrears of rent in respect of his share in the superior interest against Jadu Nath and his co sharers in the Taluk. In that suit an ex parte decree was made on the 20th September 1900. Jadunath died on the 22nd March 1901. In execution of the ex parte decree the Taluk (or a portion thereof) was sold by the Court on the 9th October 1901. The purchaser was one Naba Krist Nandi, the husband of the defendant No. 1. The sale was confirmed and the sale certificate was issued on the 29th November 1901.
2. The plaintiffs brought the present suit to recover their father's share in the Taluk. The contention on which they now rely is that the sale of the 9th October 1901 was inoperative, because at the date of the sale, Jadu Nath was dead and his legal representatives, the plaintiffs, had not been brought on the record. In the alternative the plaintiffs assert that if anything at all passed to the auction purchaser by virtue of the sale, all that was sold was a portion of the Taluk corresponding to the decree holder's interest in the Zemindary.
3. As to the first contention, it is not disputed that Jadu Nath died before the date of the sale. The application for execution which led to the sale was made on the 8th July 1901. That was also after Jadu Nath's death. But it appears that there had been a previous application for execution, presented on the 21st August 1900 and followed by attachment of the property. That application was dismissed on the 7th January 1901, apparently for default of prosecution.
4. Now, under the old Civil Procedure Code of 1882, it was held that an attachment once made did not necessarily fall with the dismissal of the application for execution Peari Lal Singh v. Chandi Charan Singh 5 C.L.J. 80 ; 11 C.W.N. 163 and Gobinda Chandra Pal v. Dwarka Nath Pal 33 C. 666 ; 3 C.L.J. 93 note. Under the old Code again if a judgment-debtor died before sale but after attachment, the sale was not necessarily invalid merely because the legal representative of the judgment-debtor had not been brought on the record. The omission was regarded, at most, as an irregularity which might lay the sale open to attack under the provisions of Section 311 of that Code Sheo Prasad v. Hira Lal 12 A. 440 (F.B.) ; A.W.N. (1890) 103 ; 6 Ind. Dec. (N.S.) 1026; Aba v. Dhondu Bai 19 B. 276 ; 10 Ind. Dec. (N.S.) 187 and Net Lall Sahoo v. Sheikh Kareem Bux 23 C. 686 ; 12 Ind. Dec. (N.S.) 456
5. Now, we have it that on the 5th June 1908 the plaintiff No. 1 in the present suit applied to have the sale set aside. The application was rejected by an order dated the 5th December 1908, which is Exhibit C on the present record. It is noteworthy that in that case exception was not taken to the sale on the ground of Jadunath's death subsequent to the decree. The objection put forward was that Jadunath had died before the decree was made and the same allegation is made even in the plaint in the present suit. It never seems to have occurred to any one in 1908 or when the plaint in the present suit was filed that if Jadunath was alive at the date of the decree the sale could be successfully impugned.
6. I make these observations to explain the reasoning of the learned Subordinate Judge. The Subordinate Judge says that there is no evidence to show that Jadunath died before attachment and that is so in reference to the attachment, made in the first execution proceeding. There is also nothing to show that the property was re attached after the second application for execution. The precise terms of the order dismissing the first application for execution are not before us. But, as I have pointed out, there is no difficulty in supposing that the attachment effected in pursuance of that application did not fall with the dismissal of the application, but continued and was in full force when the second application was made and when the sale was held on the 9th October 1901. If that be so, the omission to bring the plaintiffs on the record was under the old law, at most, an irregularity and, the sale not being void, I agree with the Subordinate Judge that it is now too late, under the Law of Limitation, to bring forward such an objection.
7. Further than that I am disposed to think that the Subordinate Judge is right in holding that the question is res judicata. The objection in question might have been but was not made a ground of attack in the proceedings taken in 1908 to set aside the sale. The plaintiffs cannot be heard now to insist upon any irregularity which they did not insist upon then. It is said that the application to set aside the sale was made by the plaintiff No. 1. It has, however, been found by the Courts below that the plaintiff No. 1 acted as a representative of plaintiffs No. 2 and 3, and that is a finding of fact with which we are not, in second appeal, at liberty to interfere.
8. There remains only the question of the true construction of the sale certificate, On that question I agree in the conclusion arrived at by the Court below.
9. For these reasons I would dismiss the appeal with costs.
Shamsul Huda, J.
10. I agree with my learned brother in dismissing this appeal. The main question for consideration is whether the sale that took place on the 21st September 1900 was effective in passing to the purchaser the right, title and interest of the judgment debtor. I have no doubt that that question must be answered in the affirmative. It is unnecessary to deal with all the cases that have been relied upon by either side. The case of Bepin Behari Bera v. Shashi Bhushan Datta 22 Ind. Cas. 95 ; 18 C.L.J. 628 ; 18 C.W.N. 766 is sufficient to establish the proposition that the death of a judgment-debtor after attachment without bringing his legal representative on the record does not affect the validity of a Bale under such attachment. The question as to whether the sale took place under an attachment previous to the death of the judgment-debtor, is a question of fact and having regard to the circumstances of the case, I think the Court below was right in arriving at the conclusion that the sale in the present case took place under an attachment that was made in the course of the proceedings upon the first application for execution on the 21st November 1900. Admittedly there was no attachment after the second application for execution, and the natural inference to be drawn from these facts is that the attachment upon the first application for execution was subsisting and the sale took place under it. The sale was, therefore, a good and valid sale and passed a good title to the purchaser. Having come to this conclusion it seems unnecessary to decide the question of res judicata or the further question that has been raised before us, viz, whether the plaintiff No. 1 represented his brothers in the application for setting aside the sale.
11. The only other question that remains to be considered is the question of the property that was sold in execution of the decree. The decree-holder was a fractional Zemindar of the Mehal. He had brought his suit for his share of the rent and what is described as having been sold in the sale certificate is the Mehal in the name of Nanda Kishore Ukil in village Garkanda within Zemindari No. 136, in Purgana Susang. After describing the Mehal as the property sold, the sale certificate proceeds to say that this Mehal was possessed by the judgment debtor under the decree-bolder at a rental of 1 annas 8 gandas odd. Having regard to the circumstances already referred to by my learned brother, I hold that what was sold was the entire Taluk held by the judgment-debtors and that the further description as regards the rent payable to the decree-holder had not the effect of limiting the sale to only a share of the Taluk equal to the share of the decree-holder in the Zemindari.