Faizaddi Taluqdar v. Rezia Begum

The Judgment of the Court was as follows:

Edgley, J.:— This matter was referred to a Division Bench by Mr. Justice Biswas on account of the fact that there appears to be a conflict of judicial opinion with regard to the main point which requires our decision.

2. One of the Defendants is the Appellant in this case and the appeal is directed against the decision of the learned District Judge of Faridpur, dated the 24th of March, 1939.

3. It appears that in Suit No. 521 of 1928 the Maharaja of Cossimbazar obtained a rent-decree against Jainuddin Talukdar, the predecessor-in-interest of the Appellant.

4. In the rent-suit the Maharaja had also impleaded the other co-sharer landlords. Subsequently, the rent-decree was assigned to the father of the Plaintiff who, on the 19th of September, 1931, initiated execution proceedings with reference thereto after serving the judgment-debtor with the notice required under Or. 21, r. 16 of the Code of Civil Procedure. On the 13th of October, 1931, Jainuddin Talukdar died. The fact of his death apparently was not brought to the notice of the decree-holder with the result that Jainuddin Talukdar's legal representatives were not brought on the record in connection with the subsequent proceedings in execution. The sale proclamation is said to have been published on the 18th of January, 1932, and the execution sale was held on the 24th of February, 1932. Symbolical possession was taken by the Plaintiff's father on the 6th of April, 1935, but subsequently he made a gift of the holding to the Plaintiff who was resisted by the heirs of Jainuddin Talukdar when she attempted to take actual possession of the property. She, therefore, instituted the suit, out of which this appeal arises for a declaration of her title and for recovery of khas possession of the property which she claimed by virtue of the sale which took place on the 24th of February, 1932.

5. The case for the Defendants was to the effect that the execution sale was a nullity, having regard to the fact that the heirs of Jainuddin Talukdar had not been brought on the record of the execution proceedings after his death. Both the Courts below decided that, on the authority of the case of Tarangini Debi v. Raj Krishna Mondal(1) the sale, dated the 24th of February, 1932, was merely voidable at the instance of the Defendants in appropriate proceedings under sec. 174 of the Bengal Tenancy Act and, as such proceedings had not been taken, the Plaintiff was entitled to the decree which she sought.

6. The only point which has been urged in connection with this appeal is that the Courts below were wrong in holding that the sale, dated the 24th of February, 1932, was voidable, but that it should have been held that this sale was wholly void on account of the failure of the decree-holder to bring the heirs of Jainuddin Talukdar on the record after the latter's death on the 13th of October, 1931. Mr. Nausher Ali on behalf of the Appellant contends that it was incumbent upon the decree-holder, if she wished to proceed with the execution of the decree against the legal representatives of Jainuddin Talukdar, to substitute them on the record under the provisions of sec. 50 of the Code of Civil Procedure. He also contends that in this particular case there had been failure to comply with the provisions of Or. 21, r. 22 of the Code. Mr. Das, on the other hand, contends that in a case in which it is sought to execute a rent-decree it is not necessary to substitute the legal representatives of a deceased judgment-debtor. He argues that sec. 50 of the Code of Civil Procedure is merely permissive and, in any event, the view that an execution sale such as the one with which we are now dealing is merely voidable is supported by the authority of Sir George Rankin's judgment in the case of Tarangini Debi v. Raj Krishna Mondal.

7. During the course of his argument Mr. Das referred to the provisions of Or. 22, rr. 4 and 12 of the Code of Civil Procedure. It is of course true that the death of a judgment-debtor will not cause pending execution proceeding to abate, but, at the same time, it is clear from sec. 50 of the Code that, if the holder of an unsatisfied decree wishes to continue the execution proceedings or wishes to execute the decree against the legal representatives of a deceased judgment-debtor, he must make an application to this effect to the Court. Further, the language of Or. 21, r. 22 of the Code implies that, when an application is made under sec. 50 of the Code, the legal representative of the deceased person must be called upon to show cause why the decree should not be executed against him. The mere fact that, in connection with a rent-decree, execution proceedings are taken against the holding of the deceased person makes no difference. The holding represents a portion of the estate of the deceased judgment-debtor and the latter's heirs are, therefore, entitled to be brought on the record of the case and to receive the notice which the law requires in order that they may be given an opportunity either to satisfy the outstanding decree or to show cause why execution should not proceed.

8. In support of his argument to the effect that the execution sale, dated the 24th of February, 1932, was merely voidable Mr. Das mainly relies upon the decision of this Court in Tarangini Debi's case, cited above. The judgment of Sir George Rankin in that case is dated the 15th of August, 1927. The learned Chief Justice held that, although it is proper to bring the heirs of a deceased judgment-debtor on the record, failure to do so should be regarded merely as an irregularity. His Lordship referred to several cases during the course of his judgment, but apparently his attention was not directed to a decision of the Privy Council in the case of Raghunath Das v. Sundar Das Khetri(2). In that case it was held that where there had been a devolution of property by reason of insolvency, the Official Assignee as the legal representative of the insolvent was entitled to receive a notice under sec. 248 of the Code of Civil Procedure [which corresponds to Or. 21, r. 22(1) of the present Code] and that failure to serve such a notice rendered inoperative any sale in execution of a decree against the original judgment-debtors. Their Lordships observed that

“As laid down in Gopal Chandra Chatterje v. Guna-moni Dasi(3), a notice under sec. 248 of the Code is necessary in order that the Court should obtain jurisdiction to sell property by way of execution as against the legal representative of a deceased judgment-debtor.”

9. Recently, this question has been fully discussed by a Full Bench of the Madras High Court in the case of Kanchamalai Pathar v. Ry Shahaji Rajah Sahib(4). The learned Judges appear to have been unanimous in holding that an execution sale was void and not merely voidable in a case in which no application had been made under sec. 50 of the Code of Civil Procedure to execute a decree against the legal representatives of the deceased judgment-debtor and where no notice had been served on such legal representatives in accordance with Or. 21, r. 22(1) of the Code. After discussing the effect of the judgment of the Privy Council in the case of Raghunath Das v. Sun-dar Das Khetri, Mr. Justice Cornish pointed out at page 473 that

“On this authority, I think, there can be no doubt that, where there has been no application under sec. 50, and consequently no issue of notice under Order XXI, rule 22(7), the foundations of the Court's jurisdiction to execute a decree against the legal representative are entirely wanting. And a sale held without this jurisdiction would be void.”

10. We entirely agree with the view which has been adopted with regard to this matter by the Madras High Court in Kanchamalai Pather's case and we think that it is not unlikely that the decision in Tarangini Debt's case might have been different, had the attention of the learned Judges been directed to the judgment of the Judicial Committee in the case of Raghunath Das v. Sundar Das Khetri, cited above.

11. It follows, therefore, that this appeal must be allowed with costs throughout. The Plaintiff's prayer for khas possession is refused and her suit is dismissed without prejudice to any right which the Plaintiff may hereafter claim as landlord of the disputed holding.

Akram, J.:— I agree.

C.C