RAM CHANDRA ARYA versus MAN SINGH & ANR.

RAM CHANDRA ARY

MAN SINGH & ANR.

December 8, 1967 ' ·' RAMASWAMI AND

·' [J. C. SHAH, V. RAMASWAMI AND V. BRARGAVA, JJ.]

Code of Cfril Procedut< (Act 5 of 1908), 0. 35, r. 15-Suit again&t huiatic l'.'ithout appointm:!nt of guardinn.-ad./ite~Decree in swit whether nullity-Sale in execution of such decrte whtthtr voki.

An ex-part!! decree "'·a~ p~ssed aitainst R in money suit and in exe· curion thereof his house was sold. It was purchased by the appellanrs father. Formal possession was given :o the purchaser but R continued 11<> reside in the house till bis death in 1945. As be died without bcin the Maharaja of Jaipur whose subject he was took possession of the bouoe. The appellanl"s father then filed wit for the possession of the ho .... The suit was contested on the ground that R was lunatic and Ii.nee the earlier suit had been instituted against him without appointment of. guardian-cd../item, the decree in that suit was nullity and the execu-tion sale void. This defence was accepted by the trial coun, the ~ appellate court, and the High Court. By special leave the appellant C&lllC 10 this Court.

HELD : It is well-<;etlled principle that if decree is pa5'ed against minor \\.'ilhout appointment of guardian, the decree is nullity and is Toid and not merely voidable. This principle becomes applicable to Ille cage of lunatic in view of r. 15 of 0.12 of the Code of Civil Procedure. so that the decree obtained against R was decree which had to treateol "" without iurio;diction and ;·oid. f574 A-BJ

sale is void ab initio if it is held in execution of decree "'hiCh i~ nu11ity and, con'iequentlv. to he treated as non~xistcnt. In the pre-sent case therefore no rights could he acquired by the purchaser when he nurportcd h) rurch:tcoc th~ hou'.,~ in execution of the decree against R. [576 BJ

R having died without lea\ing any heir, the property naturally pas.ed· by e'Cheat to the Maharaja of Jaipur. That principle is clearly reco~ in Hindtl law. [576 CJ

Jarwk Raj v. Gurdial Si11gh & Anr. [1967] 2 S.C.R. 77, Khiarajmal & ()rs. v. Dain1 &' Ors. 32 I.A. 23 and Afalkarjun v. NarhC!ri. 27 I.A. 216, referred to.

Crvu. APPELLATE JURISDICTION : Civil Appeal No. 379 of 1965.

Appeal by special leave from the judgment and .Iecree dated D1:.~t>mbcr 21, 1961 of the Allahabad High Cou; l in Second Appeal No. 920 of 1952.

J. P. Goyal and Sobhagmal Jain, for the appellant.

S. P. Sinha and M. I. Khowaja, for the resjJ<J~dents.

The Judgment of the Court was delivered by

Bhargava, J. This appeal arises out of suit fer possession of house which, at o'ne time, used to belong to one Ram Lal. ·On 11th January, 1939, one Ram Das filed suit No. 354 of 1939 against Ram Lal in the Court bf Judge, Small Causes, for recovery of sum of Rs. 144/-. That suit was later transferred to the Court of the Munsif and an ex parte decree in that suit was pass- · ed on 27th March, 1939, after the Court held that Ram Lal had been sulEciently served. In execution of that decree, the house was sold and the sale certificate was issued on 21st January, 1941 in favour of Prabhu Dayal, the father of the appellant in this appe.al. Formal delivery of possession was taken and ·the certi-ficate of delivery of sale is dated 15th May, 1941. Adn1ittedly, Ram Lal continued to live in the house even thereafter, and on 19th September, 1945, he died leaving no heir. Ram Lal was subject of the Maharaj of Jaipur and, on Ram Lal's death, the servants of the Maliaraja took possession of the house on 20th September, 1945.Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal, the father of the appellant, for possession of the house on 10th July, 1946. The suit was contested on the ground that Ram Lal was lunatic and the earlier suit No. 354 of 1939 had been instituted against Ram Lal without appointment of guardidn-od-litem, so that the decree in the &Uit was nullity. The sale in execution of !hat decree was also, therefore, challenged as void. This defence was accepted by the trial Court and the suit was dismissed on 24th January, 1950. The first appellate Court also upheld that decision. The second appeal came before learned single Judge of the Allallabad High Court who referred it to Division Bench as, in his opinion, the case involved an iillportant question of law. The Bench of the High Court confirmed the decisions of the lower Courts and, consequently, the appellant has now come up to this Court by special leave.

As has been mentioned above, the suit was dismissed b:; the trial Court and that decision has been upheld by the first and the second appellate Courts on the ground that the decree against Ram Lal was nullity and the sale held in execution of that decr.e~ was,, therefore, void. It appears from the judgment of the High Court that, in that Court, no attempt was made on behaif of the appellant to contend that the decree which was obtained a£ainst Ram Lal and in execution of which the house was sold was not nul! and void and was not nullity. On the face of it, the decree was passed in contravention of the provisions of 0. 32 r. 15 of the Code of Civil Procedure. It has been found as fact that Ram Lal was insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the

decree passed in that suit.. It is now. well-settled principle that, if decree 1S passed agamst. mmor without appointment of guardian, .the dcc~ee is nulhty and is void and not merely void-~ble. This pnnc1ple becomes applicable to the case of lunatic m view of r. 15 of 0. 32 of the Code of Civil Procedure so that the decree obtained against Ram Lal was decree which has to be treated as without jurisdiction and void. In these circwn-Hances, the sale held in execution of that decree must also be held to be void.Learned counsel appearing on behalf of the appellant contended that this proposition should not be accepted by us in view of the decision of ihis Court in Janak Raj v. Gurdia! Singh mid An-other('). The decision of that case is, however, not applicable to the case before us at all. In that case, stranger to ihe suit was the auction-purchaser of the judgment-debtor's immovable pro-perty in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the ques-tion arose whether the auction-purchaser was entitled to con-firmation of the sale under 0. 21, r. 92, C.P.C. The Court held that the sale should be confirmed. The law makes ample provi-sion for the protection of the interests of the. judgment-debtor, when his pro~rty is sold in execution. He can file an applica!ion for setting aside the sale under the provisions of 0. 21, rr. 89 and 90, C.P.C. If no such application was made, or when such an application was made and disallowed, the Court has no choice but to confirm the sale. This principle can be of no assistance to the appellant in the present case. because, in that case, when the sale was actually held, valid ex parre decree did exist. The sale, having been held in execution of valid existing decree, was itself valid; and the only question that came up for decision was whether such valid sale could be set aside otherwise than by re;ort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. In the present case, the decree. being nullity, has to be treated as non-est and, consequently, the sale, when held, was void ab initio. In such case, there is no question of any party having to resort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. to have the sale set aside. Any claim based on void sale can be resisted without having that sale set aside. The decision of this Court in that case itself brings out this distinction by stating:

"It is to be noted however that there may be cases in which, apart from the provisions of rr. 89 to 91, the court may refuse to confirm sale. as, for instaace, where sale is held without giving notice to the judg-ment-debtor, or where the court is misled in fixing the reserve rrice or when there was no decree in exi~tence at the time when the sale was held."

This Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of rr. 89 to 91, C.P.C. In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent anc! consequently, the sale must be held to be nullity.

Learned counsel also referred us to the decision of the Privy Council in Khiarajmal and Others v. Daim and Others('), but even that case, ill our opinion, does not help the appellant. In that case, the equity of redemption in respect of certain property was sold in execution of decrees Without service of notice on some of the mortgagors. The Privy Council held:

"Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But, 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 nullity and might be disregarded without any proceeding to set them aside."

Proceeding further and dealing with the case of one of the mort-E gagors, it was held that, because his interest in the property had been ignored altogether and there was no decree against him, the Court had no jurisdiction to sell his share. The portion of the judgment, on which learned counsel relied, related to the remarks made by .the Privy Council when dealing with an earlier decision in Malkarjun v. Narhari('). After discussion the ratio of that case, their Lordships at the end remarked:

"In coming to this conclusion, their Lordships aie quite sensible of the importance of upholding the title of persons who buy under judicial sale; but in the present case the real purchaser was the judgment creditor, who must be held to have had notice of all the facts."

On the basis of this comment, it was urged that their Lordships of the Privy Council intended to lay down that, if the auction-purchaser was not judgment-creditor, the sale could not be nullity. We are unable tel read any such principle in that deci-sion. In fact, the Privy Council, in very clear words, held that the sale was nullity and only, at the end, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of stranger

(I) 32 I.A. 23:

purchaser cou]j not be defeated by him. We are not prepared to ·read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but stranger, the sale would be valid sale, even though it was held in execution of decree which was void. sale is void ab initio if it is held in execution of decree which is nullity and, consequently. to. be treated as non-existent. In the present case, therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purpor:ed to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving anv heir, the property naturally passed by escheat to the Maharaja of Jaipur. That principle is clearly recognised in Hindu law. Referenee may be made to Mulla's Hindu Law, 13th Edition, p. 133, para. 59.

The deci\ion given by the High Court, in these circumstances, was perfectly correct. The appeal is dismissed with costs.

Appeal dismissed.