1. On the 23rd October 1906, a sale was held in execution of a rent decree obtained by the opposite party decree-holder against the judgment-debtors Karamat Ali and others.
2. Karamat Ali has now come forward under Sections 311 and 244 of the old Code of Civil Procedure to have the sale in question set aside on the ground of non-service of sale proclamation, and other process, and consequent inadequacy of price; also, on the ground that the rent decree, in execution of which the sale took place, was passed against a person named Ashgar who was dead at the date of the decree, 4th April 1906.
3. The Court of first instance declined to set aside the sale. It found that the sale proclamation and writ of attachment had been duly served, and, also, that the price fetched was not inadequate. With regard to the further objection that the decree had been passed against a dead person, the Munsif thought that, inasmuch as this was the result of a bona fide mistake, the rent decree was a valid decree.
4. In appeal, the District Judge of Chittagong has set aside that decision and the sale. He does not, in so many words, decide whether the sale proclamation and writ of attachment had been duly served, and whether the price was inadequate; but he has held that the judgment-debtor Karamat Ali was at Singapore during the execution proceedings and that he was unaware of them. On the second question, the District Judge has found that no decree can be executed against a person deceased and that, therefore, the sale proceedings were ab initio void.
5. The auction purchaser appeals to this Court.
6. The first point that arises for determination is whether a second appeal lies in a case like this. To meet any possible objection on this score, an application was made, under Section 622 of the old Code, and, upon that application, a Bench of this Court issued a Rule calling on the opposite party to show cause why the order of the District Judge should not be set aside on the ground that it was made without jurisdiction.
7. We think that the judgment of the District Judge is, on the whole, correct. It is true, he hardly discussed the case on the same lines as the Munsif did; but, in his opinion, as we take it from the terms of his judgment, the sale proceedings were tainted with fraud, that they were taken in the absence of Karamat Ali at Singapore, and that although they purport to have been taken to his knowledge, that was not the fact. Consequently, the case must be regarded as one under Section 244 of the Code and a second appeal would lie.
8. The same result must follow from the further consideration that, if the decree was passed against a person who, at that time, was not in existence, it was a bad decree and would be successfully impugned by any person against whom it was actually passed, and on such a decree, of course, no execution could be legally had. These propositions have been regarded as elementary by the Judicial Committee in a passage of their Lordships' judgment in Khairajmal v. Daim 32 I.A. 23 at p. 33 : 2 A.L.J. 71 : 1 C.L.J. 584 : 7 Bom. L.R. 1 : 9 C.W.N. 201 : 32 C. 296. It was there observed: 'On the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a, nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions, it may be found in the judgment of Sir Barnes Peacock in Kishen Chunder Ghose v. Musammat Ashoorun Marshall 647.'
9. In either view of the case, therefore, we think that the case is one falling within the purview of Section 244, and that, on the findings no less than on the admitted facts, the decision of the District Judge cannot be disturbed.
10. The appeal, therefore, fails and is dismissed with costs.