Mahadeo Budhya Bhamti v. Shantilal Mulji Deoji

Mudholkar, J.:— This is an appeal by defendants Nos. 1 to 5 to a suit for possession of two houses situate at, Nagpur and for mesne profits.

2. The facts which are no longer in dispute are as follows: On the foot of a mortgage deed executed by defendant No. 1, Mahadeo, his brother Narayan, now deceased, and his father Budbaji, also now deceased, the plaintiff obtained a preliminary decree for sale of two houses belonging to them on October 31, 1933. He obtained a final decree for sale on September 18, 1939. It would appear that subsequent to the passing of the final decree, but previous to the execution of the decree, Budhaji as well as Narayan died. Narayan left behind him two widows, Yamuna, defendant No. 4, and Parwati, defendant No. 5, and two sons Babusingh, defendant No. 2, and Harisingh, defendant No. 3, as his personal heirs, it is not clear as to the exact date on which Budhaji died, but it would appear that after his death his name was strict off apparently on the ground that his interest devolved, upon his sons, who were already defendants to the suit and against whom a decree had been passed.

3. On January 16, 1940, the plaintiff made an application, exh. P-20, to the Court which passed the decree stating that Narayan died on October 10, 1939, leaving behind him two sons. Bhayya, aged 7 years and Nathu, aged 3 years, as his legal representatives and were in possession of his assets. He also stated that their guardiau was their uncle defendant No. 1 Mahadeo, who was then the manager of the joint family consisting of himself and the sons of Narayan, and that therefore Bhayya and Nathu be substituted in place of Narayan and Mahadeo appointed as their guardian-ad-litem. Notices were issued upon this application. Mahadeo, however, refused to act as guardian of these two persons and, therefore, the Court reader was appointed as their gmrdian-ad-litem and they were brought on record. Thereafter, the plaintiff filed an application for the execution of the decree against Mahadeo, defendant No. 1, and against Nathu and Bhayya, who had been brought, on record as the sons of Narayan. Subsequent to that, sale notices were issued to Mahadeo as well as Nathu and Bhayya and eventually the property was ordered to be sold by Court auction on April 29, 1942. On April 10, 1942, Mahadeo, defendant No. 1, made an application to the Court, stating that. Narayan had left four legal representatives, two sons, Babusingh and Harisingh, and two widows, Yamuna and Parwati, that Nathu and Bhayya who had been brought on record were not the sons of Narayan but that they were the sons of Mahadeo himself, that it was, therefore, necessary to bring on record Babusingh and Harisingh as also the two widows, and that until that was done, the execution of the decree could not be proceeded with. Upon this application, the Court made an order on April 17, 1942, to the effect that it was no concern of Mahadeo that proper persons had not been brought on record and rejected his application. Sale was eventually held and the property was purchased by the plaintiff with the permission of the Court. He obtained symbolical possession of the property as it was in possession of tenants. It would appear that in spite of the purchase the plaintiff could not obtain possession of the property and the tenants did not pay the rent to him. He, therefore, instituted the suit out of which this appeal arises.

4. It may be mentioned that the plaintiff jointed the tenants as defendants to the suit and eventually obtained a decree not only against defendants Nos. 1 to 5, but also against the tenants. The latter are apparently content with the decree.

5. A number of defences were raised on behalf of defendants Nos. 1 to 5 in the Court below. Before us however, only one point is pressed and that, too only on behalf of defendants Nos. 2 to 5. That point is that the sale was a nullity in so far as Narayan's interest in the property was concerned inasmuch as it was held in the absence of and without notice to his legal representatives.

6. The contention of the learned counsel for the appellants that the sale is a nullity is based on the assumption that no notice of the execution was at all given to the legal representatives of Narayan; but this contention ignores the facts that both Bhayya and Nathn were, in fact, brought on record in place of Naravan as his legal representatives and that notices of sale were served upon them. It is true that the names of Narayan's sons are not Bhayya and Nath a but Babusingh and Harisingh. It is equally true that, besides these two persons, Narayan left his two widows as his legal representatives. Even so, it cannot be said that this is a case where a decree was being executed in the absence of and without any notice to the legal representatives of Narayan.

7. It has thus to be borne in mind that this is not a case of the decree-holder ignoring the existence of the legal representatives of a deceased judgment-debtor and failing altogether to take steps to bring them on record and apprise them of the execution proceedings. No doubt, be ascribed wrong names to the sons of the deceased judgment-debtor and omitted altogether the widows from his application. But that is not a kind of error which can be said to affect the jurisdiction of the Court to execute the decree. Quite apart, from the fact, that the jurisdiction of the Court to execute a mortgage decree is given by the decree itself, it would not be right to say that jurisdiction is taken away merely because upon the death, of one of the judgment-debtors the decree-holder acting bona fide described some of the representatives of the deceased judgment-debtor by wrong names and omitted altogether other legal representatives. At best this would be an error in procedure, committed by the party, not very much different from that with which their Lordships of the Privy Council had to deal in Jang Bahadur v. Bank of Upper India, Ld. . 1928 L.R 55 I.A 227. In that case, the judgment-debtor had died after the decree had been transferred for execution to another Court. Instead of making an application to the Court, which passed the decree for permission to proceed against the legal representatives of the deceased judgment-debtor, as required by s. 50 of the Code of Civil Procedure, the decree-holder made an application to the Court of transfer. It was contended that the latter Court had no jurisdiction to entertain that application and that, therefore, further steps taken by it in execution of the decree were a nullity. This contention was repelled by their Lordships of the Privy Council who observed (p. 233):

“This is a matter of procedure and not of jurisdiction. The jurisdiction over the subject-matter continues as before, but a certain procedure is prescribed for the exercise of such jurisdiction. If there is non-compliance with such procedure the defect might be waived…”

8. Apart from the question whether there is a waiver in this case, the fact that, non-compliance with the rules of procedure relating to the execution of a decree against the legal representatives of a deceased judgment-debtor can be waived, completely nullifies the argument that the jurisdiction of the Court, to execute the decree is affected by reason of a procedural error. Where the object was to execute the decree against the sons of the deceased judgment-debtor but they were described by wrong names, the error of the decree-holder cannot, be placed at anything higher than a procedural error. Such an error, we think, can be cured by recourse to the principles underlying s. 99, Civil Procedure Code.

9. We are aware of the fact that in the instant case there was no specific prayer to the effect that leave should be given by the Court to execute the decree against the legal representatives, but what was asked for was the substitution of the names of Nathu and Bhayya as legal representatives of the deceased Narayan. This is not strictly in accordance with the terms of s. 50 of the Code of Civil Procedure. But, bearing in mind the fact that the purpose with which the decree-holder made the application was to enable him to execute the decree against the legal representatives of Narayan, we would be right in holding that he complied substantially with the provisions of s. 50 of the Code of Civil Procedure in making an application. Moreover, there is also the fact that after their substitution the legal representatives were throughout represented in the execution proceedings by their guardian-ad-litem and no complaint was made on their behalf at any time on the ground that a notice under O. XXI, r. 22, was not issued to them. We may here refer to the decision, in Fakhrul Islam v. Rani Bhubaneshmari Kuer in which it was held that where a notice issued under O. XXI, r. 22, is not served on the judgment-debtor but he has appeared and contested the execution application, the object of the notice must be said to have been achieved, and therefore, the Court must be held to have jurisdiction to hold the sale. We are in respectful agreement with this view.

10. It is indeed true that in Raghunath Das v. Sundar Das Khetri . 1914 L.R 41 I.A 251, S.C 10 Bom. L.R 814. their Lordships of the Privy Council held that the substitution after notice of the official assignee in whom the property of the insolvent-judgment-debtors had vested did not entitle the executing Court to sell the judgment-debtors' property without issuing notice to the official assignee under s. 248, Civil Procedure Code, 1882, (which corresponds to O. XXI, r. 22, Civil Procedure Code, 1908,) to show cause why the property should not be sold. It must, however, be remembered that the decree being executed was a money decree and there the judgment-debtors' property had vested in the official assignee after the former's adjudication ‘free of any charge in favour of the first creditor’ as pointed out by their Lordships. Again, as pointed out by their Lordships, the executing Court was bound to stay further proceedings under s. 49 of the Indian Insolvency Act, 1948, (corresponding to s. 29 of the Provincial Insolvency Act, 1920), or at any rate, could not proceed with it until the official assignee had been brought before the Court and an order binding upon him had been obtained. This, according to their Lordships, could only be done by issuing a notice under s. 248, Civil Procedure Code, 1882, to show cause why the decree should not be executed against him. Their Lordships observed that had this been done, the official assignee could have shown good cause since the property had vested in him for the benefit of the creditors of the judgment-debtor generally, among whom were the plaintiff-creditors. Then their Lordships adverted to the notice to show cause against substitution issued to the official assignee and observed (p. 255):

“It is possible that the notice might be upheld as a proper notice preliminary to adding the official assignee as a party under section 32 (corresponding to Order 1, rules 8, 10 and 11) if that section were applicable, but in order to bind a party added under that section, he has, after being added, to be served with a summons to appear and answer, and it is not suggested that any such summons was served. Similarly, it is not suggested that any order to carry on proceedings was obtained under s. 372 (which corresponds to Order 22, rule 10, Civil Procedure Code, 1908).”

11. Their Lordships have then set out thus what actually happened in the case before them (p. 256):

“Having obtained leave in that behalf, the respondents proceeded to serve the notice in question, and their Lordships will assume that the notice was duly served on the official assignee. The official assignee took no notice of it, possibly because he had no objection to being substituted as a party, and expected to be served with notice of any further application against him. There is no evidence that he knew that an order for sale had been already made. The time fixed by the notice for cause to be shown having expired, the respondents, without further notice to the official assignee, applied for and obtained an order not only substituting the official assignee as a party in the place of the judgment debtors but directing the sale to proceed. The sale accordingly proceeded.”

12. It will be seen that what weighed with their Lordships in that case for holding that notice under s. 248, Civil Procedure Code, 1882, was in dispensable was (a) that the property had vested in the official assignee without encumbrance, (b) that the official assignee did not know of a sale order that had already been passed, (c) that the only step taken after substitution was obtaining a direction that sale already ordered should proceed, and (d) that as a result he had no opportunity to show cause against execution, when, in fact, he could have shown good cause. It would be pertinent to quote here the reasons stated by their Lordships for holding the sale in that case ‘altogether irregular and inoperative’:

“In the first place the property having passed to the official assignee it was wrong to allow the sale to proceed at all the judgment creditors had no charge on the land, and the Court could not properly give them such a charge at the expense of the other creditors of the insolvents. In the second place no proper steps had been taken to bring the official assignee before the Court and obtain an order binding on him, and accordingly he was not bound by anything which was done. In the third place, the judgment debtors had at the time of the sale no right, title, or interest which could be sold to or vested in a purchaser, and consequently the respondents acquired no title to the property.” (pp. 256-257).

13. It would thus appear that it was because of the combined effect of the four circumstances set out by their Lordships that they considered the sale as altogether irregular and inoperative.

14. Now, in the instant case, substitution was sought and obtained before any step was taken in execution. After obtaining substitution, an execution application was made seeking execution against not only the original judgment-debtor Mahadeo but also against the legal representatives (or persons bona fide believed to be the legal representatives) of the deceased judgment-debtor Narayan. In their execution application the present plaintiff who was the decree-holder there sought the sale of the mortgaged property. Sale notices were actually ordered to issue to the judgment-debtors named in the execution application and were served on each of them as appears from the record of the execution case which is before us. It was only after the legal representatives were duly served that the executing Court made an order for sale of the property—though in law it was not necessary for the Court to make such order inasmuch as the final decree had itself ordered the sale of the property—and eventually a sale proclamation and a warrant for sale were issued. Thus, by reason of the procedure followed by the Court the legal representatives had, in point of fact, an opportunity to show cause against the sale through their guardian-ad-litem. No doubt, the notices did not require them to ‘show cause’ but, that apart, they were sufficient to bring the execution application and the prayer therein for the sale-of the mortgaged property to their notice. In the case before their Lordships there was no notice of any kind to the official assignee after his substitution on the record and the sale proclamation was issued straight way. Indeed, there could be no occasion to give him any notice as in s. 287, Civil Procedure Code, 1882, there was no requirement for giving of any notice before the issue of a sale proclamation. Thus, what could be achieved by a notice issued in the language of O. XXI, r. 22, Civil Procedure Code, was, in fact, achieved here by the sale notices. This is a point of distinction between the case before their Lordships and the instant case and, in our opinion, the distinction is material. The view taken in Gopal Chunder Chatterjee v. Gunamoni Das that a notice under s. 248, Civil Procedure Code, is necessary to give jurisdiction to a Court to sell the property was no doubt approved by their Lordships, but in that case also there was no substitution at all of the legal representatives, nor was any notice of sale served on the legal representatives as there was no provision in the Code then in force requiring such notice to be given.

15. It seems to us to be clear from the, oft, quoted decision of their Lordships in Malkarjun-bin-Shidramappa Pasara v. Narkari bin Shivappa that actual notice under O. XXI, r. 22. Civil Procedure Code, to the legal representatives of the judgment-debtor is not always necessary to give jurisdiction to the excepting Court to sell the deceased judgment-debtor's property and that there may be circumstances under which even in the absence of such notice the sale could be upheld. One of such circumstances would be when the legal representative after being substituted had, in point of fact, been apprised of the proposal to sell the property. An absence of such notice could not, ipso facto, go to the root of the jurisdiction of a Court to sell property in every case falling within sub-r. (1) of r. 22 of O. XXI. Again, the whole trend of their Lordships' judgment in Raghunath Das v. Sunder Das Khetri shows that different considerations may apply where a Court has jurisdiction to sell the property by virtue of the fact that the decree is a final decree for the sale of tine property.

16. We may also refer to the view expressed by Meredith J. in his dissenting judgment in Ajablal v. Hancharan that a notice under O. XXI, r. 22, of the Civil Procedure Code is not a sine qua non for giving jurisdiction to the executing Court to execute a mortgage decree against the legal representative of the deceased judgment-debtor. To the same effect are also the decisions in Kaniz Mehdi v. Rasul Beg and F.K Chrestien v. Jaideo Prasad Rai,3

17. Indeed, it is elementary that no one can be deprived of his property except according to law. A sale in execution results in the deprivation of the property of the owner thereof. A Court can, however, sell a person's property provided the decree which it is executing gives it jurisdiction to do so. Such jurisdiction could be conferred upon the executing Court, by the decree itself where it, directs the sale of the property. Having obtained jurisdiction to sell the property if the Court commits an error or omits to issue any notice required by law, it no doubt acts irregularly, but does not thereby lose the jurisdiction to execute the decree which it derived from the decree itself. Where, however, the decree itself does not give jurisdiction to sell property then the Court must obtain it in some other way. Ordinarily, the execution application will give it jurisdiction if it contains a prayer that the money payable under the decree be realized by sale of certain specified property of the judgment-debtor. Different considerations arise where, after the passing of the decree the judgment-debtor died and his property devolved on his heirs. In such a case the property having passed on to some one other than the one against whom the decree was made, jurisdiction has to be obtained by recourse to a special procedure. It is said that the only procedure that can, in such a case, give jurisdiction to a Court is that provided by O. XXI, r. 22, Civil Procedure Code. Now, the law is that even though the original judgment-debtor dies, the person who takes his estate by succession or by inter meddling with it or, in certain cases, by survivor ship is liable to satisfy the decree to the extent of the assets of the deceased judgment-debtor which have come to him. But that does not mean that the property he gets is not his own. It is therefore necessary to apprise him of the claim of the decree-holder and hear him before selling his property.

18. It is only after doing that and after overruling such contentions as may be raised by him that the Court can ‘grant leave’ to the decree-holder to proceed against the property in the hands of the legal representative. In other words, the Court, has to adjudicate upon the matter and order that the property though it has devolved on some one who is not a party to the suit, shall be sold. When an order of this kind is made, the Court gets jurisdiction to sell the property. As the making of such an order must necessarily be after, hearing the legal representative, notice to him becomes essential. Where, however, no notice is given, the legal representative is not heard or even apprised of what is being done, the sale must of course be held to be without jurisdiction. But these considerations cannot, in our opinion, arise where, as here, a final decree is passed on a mortgage in the presence of the judgment-debtor whereby the mortgaged property is directed by the Court under O. XXXIV, r. 5(2); of the Code of Civil Procedure to be sold, the judgment-debtor dies thereafter and his legal representatives who have been substituted in his place have been served with the sale notice, and have, after substitution, been throughout represented in the subsequent proceedings. We do not think that the only way in which a. Court can get jurisdiction to sell the property in the hands of the legal representatives is by issuing a notice to him under O. XXI, r. 22, Civil Procedure Code Indeed, their Lordships have not said so in Raghunath Das's case. All that they have said is that notice is necessary to give jurisdiction to the Court and not that in every conceivable case the only way in which the Court can get jurisdiction is by issuing notice under the aforesaid provision. No doubt, in that case their Lordships were dealing with the question whether there could be no foundation for jurisdiction except a notice under O. XXI, r. 22, but that is a different matter altogether. Bearing in mind their Lordships' observations in Malkarjtm v. Narhari (p. 348):

“There can be no question that omission to serve notice on the legal representative is a serious irregularity, sufficient by itself to entitle the plaintiff to vacate the sale. But there may be defences to such a proceeding, and justice cannot be done unless those defences are examined by legal methods.”

19. Which have not been disapproved in Raghunath Das's case, it would be legitimate to conclude that the failure to give notice to a legal representative under O. XXI, r. 22, will not, in every case, render the sale void, though it may render it voidable. It would, therefore, follow that where the order to sell the property was made during the lifetime of the judgment-debtor, the proceedings for the sale of that property were brought to the notice of the legal representatives in some manner, the sale proclamations issued subsequent to that and the sale was held in pursuance thereof, the action of the Court could not be characterised as being without jurisdiction. At worst, the action may be characterised as irregular. As already stated, in this case Narayan was alive when the final decree for sale was passed, i.e when the order for sale of the property was made. His legal representatives were substituted in his place, notices of sale under O. XXI, r. 66(2), were served on htem and the sale was held only after that. Even at such a stage it would be open to the legal representatives to say what they want to say in connection with the proposed sale, or they could even offer to redeem the mortgage, and therefore, it cannot be said that they were prejudiced by reason of the omission to serve on them notices under O. XXI, r. 22, of the Code of Civil Procedure.

20. Reliance was also placed on behalf of the appellants on the decision in Khairajmal v. Daim. That was a case of Mohammedan mortgagors. A suit to recover his share of the money due upon a mortgage executed by one Nabibaksh on his own behalf and on behalf of his brother Alibaksh, instituted by Walirarn one of the mortgagees, was referred to arbitration in pursuance of a petition signed, among others, by Nabibaksh. Shortly afterwards, Nabibaksh died leaving two widows; a son and a daughter. They were brought on record in his place. Eventually, an award was made whereunder a sum of Rs. 350 was payable to Waliram in three instalments from the estate, of Nabibaksh and from that of some others. The money not having been paid, the mortgaged property was sold. Thereafter, Alibaksh, the heirs of Nabibaksh and some others instituted a suit for redemption of the mortgage. One of the questions which arose for decision was the interest of which of the defendants to the mortgage suit passed at the execution sale. Dealing with this matter their Lordships added (p. 312):

“But on the other hand the Court had no jurisdiction to sell the property of persons who were not patties 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.”

21. It may be mentioned that Alibaksh was not made a party to the suit nor was he represented in the execution proceedings. No doubt, the mortgage itself was executed on his behalf by his brother Nabibaksh and, according to their Lordships, Alibaksh having sued to redeem that mortgage must be deemed to have accepted Nabibaksh's authority to execute the mortgage. The dispute raised in the suit was referred to arbitration but soon afterwards, Nabibaksh died and his two widows and one of his sons Muhammad Hasan were brought in record as his legal representatives. Thereafter, the award of the arbitrators was received and a decree made in pursuance of it. Their Lordships pointed out that though possibly it may have been held that Nabibaksh's authority extended even to represent Alibaksh in Waliram's suit, by no possibility could it be considered that Alibaksh was represented by the widows or the infant son of Nabibaksh. Thus, though on the basis of the award a decree for sale of the mortgaged property was passed, it was a decree to which Alibaksh was not properly made a party. In other words, it was a decree against his property made in his absence (or one made by ignoring his interest in the property). Such a decree could not give the executing Court jurisdiction to sell the property not even by issuing a notice under s. 248 of the Civil Procedure Code. Clearly, therefore, this was not a case in which the defect consisted of a mere absence of notice under s. 248 of the Code but was one wherein, the defect was of a more substantial kind: that defect was that after the person who represented the minor died, there was no one who could represent him in the suit and that consequently the Court could get no jurisdiction either to pass a decree or to make any order with regard to his property. The decree passed by it was so far as he was concerned, a nullity and could be ignored.

22. Finally we would also observe that quite apart from the fact that there was nothing in s. 248, Civil Procedure Code, corresponding to the provisions of sub-r. (2) of O. XXI, r. 22, we have a proviso added to sub-r. (2) of r. 22 by the amendment made by the Nagpur High Court. That proviso is in the following terms:

“Provided that no order for the execution of a decree shall be invalid by reason of the omission to issue a notice under this rule, unless the judgment-debtor has sustained injury by reason of such omission.”

23. This proviso would, in a jurisdiction in which it is in force, make it clear that an omission to issue a notice in the form indicated in sub-r. (1) of r. 22 of O. XXI, does not affect the jurisdiction of the Court to execute the decree. It would follow, therefore, that at worst a sale held in the absence of such notice can be avoided if the judgment-debtor has sustained substantial injury by reason of the omission. That means that, in certain circumstances, the sale could be avoided by the party affected thereby and not that it could be ignored as being void or a nullity. The sale could be avoided by the aggrieved party by making an application under O. XXI, r. 90, or, where permissible by filing a separate suit. Even, however, as contended by the appellants here, that it can be sought to be avoided by pleading the irregularity as a defence to a suit for possession, it is sufficient to say that no substantial injury has been either pleaded or sought to be proved. Since the binding character of the decree is not challenged before us (and indeed its validity was accepted in an application made under the Relief of Indebtedness Act by all the appellants before us) all that the appellants Nos. 2 to 4 could be said to have lost is the right to redeem. They have, however, not sought in their written statement to redeem the mortgage but have rested content by saying that the sale is altogether had and ineffective. They are, therefore, not entitled to any relief whatsoever in this suit on the ground of irregularity.

24. What remains to consider then is whether the widows of Narayan can be said to have been represented in the execution proceedings by reason of the fact that Nathu and Bhayya were made parties thereto in the bona fide belief that they were the sons of Narayan. It seems to us that the decision in Khairajmal v. Daim is an authority for the proposition that where a decree-holder, acting honestly, makes one of several legal representatives of a deceased judgment-debtor party to the execution proceedings, all the legal representatives would be bound by a sale held in those proceedings. This would appear from the following observations of their Lordships (p. 313):

“Nabibaksh's estate was sufficiently represented for the purpose of the suit although the name of his infant daughter was omitted, and that his (Nabibaksh's) share of the equity of redemption in the property sold in execution of the decree in No. 372 of 1879 is therefore bound by the sale, and irredeemable.”

25. We are aware that with regard to the estate of another person, Naurez, which was claimed to have been represented in the suit in which a decree purporting to be binding on that estate had been obtained, because, Amirbaksh, one of Naurez's heirs, was made a defendant thereto, their Lordships have observed (p. 314):

“The Indian Courts have properly exercised a wide discretion in allowing the estate of a deceased 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. But these are usually cases where the person named as defendant is de facto manager of a Hindu family property, or has the assets out of which the decree is to be satisfied under his control.”

26. While dealing with the facts of the case, their Lordships pointed out that Amirbaksh was a minor and the plaint showed “Naurez, deceased, by his legal representative Amirbaksh, by his guardian, his uncle Alah Nawaz”, the last named personally as some of the defendants. Then their Lordships added (p. 314):

“It is not pretended that Alahnawaz was in any legal sense or in fact his guardian, or was ever appointed his guardian ad litem.”

27. Their Lordships' ultimate decision with regard to this aspect of the case was (p. 315):

“There Lordships think that the estate of Naurez was not represented in law or in fact in either of the suits, and the sale of his property was therefore without jurisdiction and null and void. Nor can they hold that the share of Amirbaksh himself in his father's estate was bound.”

28. Thus, their Lordships' observations relate to non-representation of the estate in the suit itself and not merely in execution proceedings. Indeed, a situation of that kind was clearly distinguished by their Lordships in Malkarjun's case where with reference to the decision in Basicantapa Shidapa v. Ranu and Malkhana they observed:

“In that case neither the debtor nor his estate were ever made subject to the decree of the Court, the liability never was established, and the process of execution had nothing to rest upon. The Court actually had not the jurisdiction which it purported to exercise. It is a different matter when the Court has by its decree established the debtor's liability and is in the process of working it out against his estate.” (p. 348).

29. We, therefore, think that the observations made by their Lordships in Khairajmal's case do not apply to the case before us.

30. What does apply is, as already stated, their Lordships' view as regards the effect of the sale of Nabibaksh's share on the interest of his infant daughter who was not brought on record along with other legal representatives of Nabibaksb.

31. To summarize we are of the view that—

(1) Where the decree which is being executed against the legal representatives of a deceased judgment-debtor is a mortgage decree, the omission to issue a notice to them does not render a sale held in execution thereof a nullity. It is only a avoidable sale and can be avoided by the legal representatives either by making an application under O. XXI, r. 90, Civil Procedure Code, or, where permissible, by filing a separate suit.

(2) That, in a jurisdiction in which the proviso to sub-r. (2) of r. 22 of O. XXI, is in force, an omission to issue a notice under O. XXI, r. 22, does not render the sale even voidable unless the irregularity has resulted in a substantial injury to the legal representatives.

(3) That, where a decree-holder acting bona fide describes the legal representatives of the deceased judgment-debtor by wrong names, the error is one of description only and sale held after notice to such persons is not a nullity.

(4) That, the omission to substitute some of the legal representatives of the deceased judgment-debtor does not render an execution sale void even to the extent of the interest which such legal representatives took in the property of the deceased judgment-debtor.

32. Upon this view, we dismiss the appeal with costs.

33. Appeal dismissed.