Dhavle, J.:— These appeals arise out of three suits brought by the junior descendants of one Dharam Narain Singh for declarations that three certificate sales were void, or failing this, that their own shares in the properties sold were unaffected by the sales in question. The trial Court dismissed the suits, but on appeal the District Judge decreed them in part and declared that the certificate sales affected only the shares of the certificate debtors named in the certificate proceedings and in one of the suits, further that the sale was void as regards the share of Bibhuti, one of the certificate debtors. Dharam Narain Singh had three sons, and in the Record of Bights of 1916 the properties, three mukarraris, were-shown in the names of five descendants of his, (1) Sukhnandan, grandson of his eldest son, (2 to 4) Bishunandan, Bibhuti and Pashupati, the first a grandson, and the other two, sons of the second son, and (5), Sheonandan who had been adopted from the second son by the third son of Dharam Narain Singh. For the recovery of arrears of rent for 1336 Fasli in respect of a mukarrari interest of 1 anna 7 dams 10 cowries, in mauza Dharaut Shekh the landlord took, certificate proceedings against all the five holders shown in the Record of Rights-except Pashupati (No. 4 above), instead of whom three sons of his named Mahesh, Suresh and Naresh were joined as minors under the guardianship of Sheonandan. A sale held in execution of the certificate in May 1930, proved abortive and then there was another sale in January 1931, the auction-purchaser taking out dakhaldehani on 3rd January 1932. The suit challenging this sale was instituted on 4th April 1934, and has been referred to by the District Judge as Title Suit No. 66, being the suit in which he declared that the sale was void as regards the share of Bibhuti.

2. The landlord similarly took certificate proceedings for the recovery of arrears of rent for the year 1337 in respect of two other properties of the family—the 16 annas mukarrari of mouza Jamanganj and a 1 anna 6 dams 5 cowries mukarrari in mauza Dharaut Khas. The certificate debtors named in these proceedings were the seven persons proceeded against on the earlier occasion (leading to Title Suit No. 66) besides, Dinesh another son of Pashupati. The certificate sales were held in March 1931, and petitions of objection under Section 29 of the Public Demands Recovery Act (Bihar and Orissa Act 4 of 1914) were filed in May by twelve members of the family, of whom six (including our plaintiffs Naresh and Dinesh) were certificate debtors and the other six were descendants of Bibhuti who, it has been found as a fact, had died on 4th January 1931, the date of service of the notice under R. 25 of Sch. 2 of the Act. Mahesh, the only other certificate debtor, does not figure in these objections; he was apparently dead (though the time of his death has not been ascertained) and his three brothers who were among the objectors were his heirs. These objections were compromised in July 1931, it being agreed that the sales were to be set aside if the objectors paid a certain sum by 22nd December of that year and that otherwise the objections were to be dismissed without adjudication and the sales confirmed. The objectors failed to make the necessary deposits, and the sales were confirmed on 22nd December 1931. We are now concerned with eleven of the plaintiffs in the suits out of which these appeals arise. Out of these eleven persons, Naresh and Dinesh (as already stated) were named as debtors in the certificate for the rents of 1337 fasli, while Naresh alone was among the debtors named in the earliest certificate. Six others out of these plaintiffs were among the objectors under S. 29 in the two later certificate cases and were parties to the compromise of July 1931. The remaining three are Gopal Saran Singh, minor, son of a certificate debtor Sukhnandan (No. 1 above), and Ganesh and Tarkeshwar (a minor), sons of another certificate debtor Sheonandan (No. 5). Plaintiffs impugned the sales on the ground that processes were fraudulently suppressed, and the compromise petitions in two of the three cases fraudulently put in. The trial Court found that there was no fraud, and in the lower Appellate Court the question of fraud was not pressed. Both the Courts held that the compromise of July 1931, estopped the eight objectors who are among these eleven plaintiffs from challenging the sales. The trial Court held that the mukarraris themselves had passed under the certificate sales but the learned District Judge came to the conclusion that what had passed at the sales was no more than the right, title and interest of the certificate debtors. The trial Court also held that the failure of the landlord to bring on the record of the certificate proceedings the legal representatives of Bibhuti, the certificate debtor who died before the sales, was no more than an irregularity and did not affect the validity of the sales. Differing on this point also from the trial Court, the learned District Judge held that the omission rendered the sale void in respect of the share of Bibhuti, but that this consideration could be given effect to only in title Suit No. 66, the other two suits being concluded in this respect by the compromise of July 1931.

3. Against the decision of the District Judge, the transferees from the purchasers at the certificate sales have appealed. The only points urged on their behalf are that the lower Appellate Court was wrong in differing from the trial Court on the two points already indicated and that the ordering portion of the judgment of the lower Appellate Court is not altogether in accordance with its findings. The first question in these appeals, thus, is whether it was the mukarrari tenures themselves or only the right, title and interest of the certificate debtors in them that passed under the certificate sales. Section 26(1) of the Public Demands Recovery Act (Bihar and Orissa Act 4 of 1914), expressly provides that where property is sold in execution of a certificate, there shall vest in the purchaser merely the right, title and interest of the certificate debtor at the time of the sale, even though the property itself be specified. Sir Manmatha Nath Mukerji for the appellants has argued that this provision does not prevent the Mitakshara son's share from passing at a certificate sale held against his father, and in support of this contention he has relied on AIR 1937 Pat 517,1 decided by Courtney-Terrell C.J and James J. The correctness of this ruling is one of the points that led to these appeals being referred to this Bench of three Judges because my Lord the Chief Justice and myself before whom they had come at first were inclined to doubt it. The late Chief Justice took the view that the right, title and interest of a Hindu Mitakshara father which had passed under a certificate sale included “the rights which he had by virtue of his position as the father, that is to say, the right to sell the family property for a debt which was not of an immoral nature, and which the son, the plaintiff in the suit, was under a pious obligation to pay. Beginning with the proposition that “a father, by incurring a debt, binds the property of the son so long as the debt is not for immoral purposes and lays the estate open to execution proceedings based upon a decree for the payment of that debt,” the learned Chief Justice observed:

In his individual capacity and apart from his fathership, it is true he has a right to partition and to take such share as might be allotted to him on partition, but in respect of his fathership he has the further right to sell the family property to discharge debts incurred by him and the sons are not in a position to object, being bound by the pious obligation to pay the father's debt in any case….

4. This right to dispose of the family property for his own debt was, according to him, included in the father's right, title and interest because “if the judgment-debtor can sell the property to satisfy the debt, so can the purchaser who steps into his shoes.” Now it is beyond question that a Mitakhara son cannot, by reason of his pious obligation, successfully impugn a sale of the family property by the father to discharge his own debts (provided they are not avyavaharika), and that the father may sell the joint family property including the son's interest therein to discharge such debts, or lay it open to be taken in execution proceedings for them. A few months before the decision in AIR 1937 Pat 517 it was also held by a Full Bench of this Court in 16 Pat 602 that this power of the father to dispose of the joint property is property which on insolvency passes to the Receiver. But this was based on the fact that the Receiver by his peculiar position under the (Provincial Insolvency) Act may be taken to represent the insolvent as well as his creditors. If he represents the Insolvent, it would be illogical to hold that he cannot exercise the power which the insolvent could exercise to pay of his debts, and similarly it would be contrary to principle to hold that though the holder of a simple decree against the father can attach and sell the joint family property including the interest of his son, the receiver is unable to do so.

5. But this is very different from holding that the father's power, if he so chooses to sell the family property inclusive of the share of his son passes to the certificate purchaser of his own “right, title and interest.” The holder of a decree against the father can effectively bring the family property to sale in execution not because he steps into the shoes of the father (as the receiver does) but because the son's pious obligation to pay his father's debts results in the father, by incurring a debt not tainted with immorality, laying the family property open to execution for such a debt without the possibility of a successful challenge by the son. The certificate holder is in a different position altogether, under Section 26(1) of the Public Demands Recovery Act; a sale held at his instance can only pass the right, title and interest of the certificate debtor. The view that this includes the father's qualified power to dispose of the joint property is entirely opposed to a number of decisions of the Judicial Committee in which it was held that a sale of the right, title and interest of the father in execution of a decree for his debts entitled the execution purchaser to no more than the share that the father would get on a partition of the family.

6. In 3 Cal 1983 for instance, their Lordships gave the father's execution purchaser, the appellant a declaration, as against the son who had been restored to possession that the purchaser had acquired the share of the father and was entitled to have it ascertained by partition, and they added that they could not make any more precise declaration as to the father's share “since if a partition takes place, his wife may be entitled to a share.” This was followed in 10 Cal 626,4 in which the Judicial Committee overruled Mr. Doyne's contention for the execution purchaser that the right, title and interest of the father was “his interest as a manager who had incurred debts binding on the other members of the family” (see p. 633 of the report). Their Lordships held that the interest purchased was not the father's share at that time in the property but the right which he would have to a partition and what would come to him upon the partition being made, and they dismissed the execution purchaser's appeal on the ground that the decree of the High Court, which gave him a one third share in the property of the joint family consisting of the judgment-debtor, his wife, and their son, was more favourable to himself than he was entitled to. These and other decisions of the Privy Council regarding what is meant by the right, title and interest of a Mitakshara father were not referred to in AIR 1937 Pat 517 and make it impossible, in my opinion to hold that in that case the father's right, title and interest” was correctly held to include his power to sell the family property to discharge his own personal debts.

7. The learned advocate also cited a Special Bench decision of this Court, 19 PLT 3285 in which a suit was brought by seven out of eight members of a Hindu joint family to prevent a sale of their interest in the family properties in execution of a certificate against the eighth member. This was after the certificate authorities had overruled the objections of the plaintiffs to the proceedings taking the view that the certificate debtor represented the family and had borrowed money in that capacity for family purposes from the Co-operative Society on whose behalf the certificate proceedings had been taken. Fazl Ali J. with whom Courtney-Terrell, C.J and James J. agreed, held that in the circumstances of the case the plaintiffs were not entitled to the relief they had claimed. The learned Judge pointed out that in the certificate proceeding itself it had been made clear upon the plaintiffs' own application that the certificate debtor had incurred liabilities as representing the entire joint family, and he referred among other provisions to Section 11 of the Public Demands Recovery Act, under which the Certificate Officer may amend the certificate by the addition of the name of any certificate debtor. The decision, therefore, cannot be taken to mean more than that as it was the joint family that was substantially in the position of the certificate debtor, it was not open to the plaintiffs to resist the sale of the family property. The case did not decide that on an ordinary certificate against one member of a joint Hindu family the certificate holder is competent to proceed against more than his right, title and interest in the family property, and, in my opinion, it is of no assistance to the appellants. By providing explicitly that there shall vest in the purchaser merely the right, title and interest of the certificate debtor at the time of the sale even though the property itself be specified, the Legislature has clearly adopted the view taken by the Courts under former Public Demands Recovery Acts—Bengal Act 7 of 1880 and Bengal Act 1 of 1895. These Acts had provided for the execution of certificates in the same manner as decrees for money under the Code of Civil Procedure, and it was held in a series of cases that certificate proceedings operate against the interest of the certificate debtor alone and that “the doctrine of representation and the principle of estoppel” upon which the decision of the majority of the Judges in 26 Cal 677,6 was based are not to be extended to sales under the Public Demands Recovery Act: see 6 CWN 3027 and 13 CWN 750.8 It seems to me even less possible than under the former law to read the doctrine of representation and the principle of estoppel into sub-Section (1) of Section 26 of the our Public Demands Recovery Act. There was, however, an important change in the law made in 1907, when Chap. 13A was added to the Bengal Tenancy Act, introducing a summary procedure for the recovery of rents under the Public Demands Recovery Act of 1895. Sub-s. (5) of S. 158A, the Section which constituted the new chapter provided that the certificate for the recovery of rent shall, as regards the remedies for enforcing the same and so far only, have the force and effect of a decree of a Civil Court passed in a suit for the recovery of rent, and the provisions of Chap. 14 shall, so far as may lie practicable, be applicable to all proceedings for the execution of such certificate.

8. The Section was amended in 1914 when the Bengal Public Demands Recovery Act of 1895 was replaced by our Act 4 of 1914. Sub-s. 7 of S. 158A now provides that the Bihar and Orissa Public Demands Recovery Act, 1914, with such restrictions and modifications (if any) as may be prescribed, shall apply to the execution and to all proceedings arising out of the execution of certificates filed under sub-s. (5), and S. 158B which is found at the beginning of Ch. 14, places certificates for arrears of rent, as regards the effect of a sale of a tenure or holding, on the same footing as decrees for the same, provided they are signed on the requisition, or in favour of a sole landlord, or the entire body of landlords. Certificates or decrees so obtained operate differently from money decrees in that when a tenure or holding is sold in execution of them, it is the tenure or holding, and not merely the right, title and interest of the debtor that passes. Sub-s. (3) of S. 26 of our Act of 1914 provides that notwithstanding anything contained in sub-s. (1) in areas in which Ch. 14, Ben. Ten. Act, 1885, is in force, where a tenure or holding is sold in execufcion of a certificate for arrears of rent due in respect thereof, the tenure or holding shall… pass to the purchaser… with power to annul the interests defined in the said chapter as “incumbrances.” This provision does not indicate how a tenure or holding may be sold in execution of a certificate for arrears of rent due in respect thereof, but merely lays down what passes at such sales. But Section 158B of the Tenancy Act, as I have already said places certificates on the same footing as rent decrees in respect of the sale of a tenure or holding. This Section, which requires the presence as plaintiffs or certificate holders of the whole body of landlords, makes no similar provision as to the tenants, but it is well established by the decisions that whatever may be required for the purposes of a mere money decree, ordinarily all the tenants of a holding are necessary parties to the suit in order that the decree and the sale in execution of it may have the important consequences described in Ch. 14, Ben. Ten. Act.

9. Jenkins C.J from whose decision in 17 CWN 8339 I have just been quoting, continued:

I say ordinarily because there may be conditions in which the presence of even one or some of the tenants as defendant may be as effective as that of all…. The authorities sanction the view that where one of a number of tenants is put forward by the rest as their representative, he can be regarded as the sole tenant for the purpose of a suit for arrears of rent within Ch. 14. Whether one of several can be regarded as a representative of the rest must depend on the circumstances of each case, and is, if not essentially at any rate largely, a question of fact.

10. It was on this ground that in 37 Cal 75,10 where the lower Courts had held on the authority in 9 CWN 84311 that the holding had not passed at a sale held in execution of a decree for rent obtained against the recorded tenant only, Richardson and Chatterjee JJ. remanded the case for the lower Appellate Court to consider whether the recorded tenant did not represent the holding. The question of representation is thus no longer foreign to certificate proceedings. With S. 158B, as it now stands, we must take it, following the reasoning of Jenkins C.J in 17 CWN 833 which was referred to with approval by Lord Thankerton in a case under the Chota Nagpur Tenancy Act, 12 Pat 626,12 that in order to justify the sale of a tenure or holding under our Public Demands Recovery Act, all parties interested in the tenure or holding must be joined as debtors in the certificate proceedings or be sufficiently represented by the parties joined as such, and that unless this is done, the purchaser at the certificate sale will acquire neither the shares of other parties nor the power to annul incumbrances, but only the right, title and interest of the certificate debtors them-selves. The learned District Judge was in error in so far as he took it that there could be no “representation” in proceedings under our Public Demands Recovery Act, 1914.

11. It has been further urged on behalf of the appellants that the lower Appellate Court should, as a matter of law, have held that all the parties interested in the mukarraries were sufficiently represented by those who were joined as certificate debtors, and this for three reasons: (1) the landlord took the proceedings against all those descendants of Dharam Narain Singh, whose names were shown in the record of rights, except Pashupati who was dead and whose sons were joined as certificate debtors; (2) the other members of the family who were interested in the properties had not given notice of their succession, though required by Section 15th of our Tenancy Act to do so, and had paid no rents; and (3) there was evidence that some of the certificate debtors were kartas of the family or its branches. But the land, lord named only three sons of Pashupati's as certificate debtors in the proceeding for the arrears of 1336 Fasli, while in the later proceedings he mentioned a fourth son Dinesh; and Naresh and Dinesh were minors. This affects the matter in two ways: It suggests in the first place that the landlord did not even intend to proceed against the kartas as such but proceeded against them in their individual capacity — all the more so because it is now settled law that even if some of the tenants are left out, the landlord is not disentitled to a money decree: see 7 Pat 35313 and the Full Bench decision in 53 Cal 197.14 and Dinesh was left out in the first proceeding. The question whether a sale held in execution of a rent decree passes only the father's interest-in the property sold or the whole holding or tenure depends upon the form of the execution proceedings, including the sale proclamation and the sale certificate, as well as the proceedings in the suit in which the decree was made. The certificate procedure is a summary mode for the recovery of arrears, and this makes it all the more necessary for the certificate holder to make it clear that he is bringing the whole holding or tenure to sale. He can, of course, do so by joining as certificate debtors all the persons interested in the tenure or holding; but where he has not done so, it becomes necessary for the purchaser at the execution sale (or his transferee), in a contest with those members of the family who were not joined in the certificate proceedings, to establish clearly that the latter were represented by those against whom the landlord had taken the proceedings.

12. It has not been urged on behalf of the appellants that there is any evidence indicating that the landlord did anything to show that he was proceeding against those certificate debtors who are said to have been kartas as such. The learned District Judge finds that though the onus was on the defendants to establish their plea of estoppel by representation, “they have done nothing to prove even the names of the tenants recorded in the landlord's registers.” Even that if proved, would only have been the first step in establishing the plea. In 26 CWN 138,15 a suit was brought by certain heirs for a declaration that their interest in a tenure had not been affected by a sale held in execution of a decree for rent obtained against another heir. The lower Courts had dismissed the suit, the District Judge holding that the very fact that rent decrees were obtained against the defendant tenant showed that he was recognized by the landlord as the tenant. This heir alone was shown in the Record of Rights. Mookerjee C.J with the concurrence of Fletcher J. reversed the decision. He pointed out that in order to entitle the execution purchaser to invoke the aid of the principle of representation it is not sufficient to show that the landlord has chosen to obtain a decree for rent against one out of several heirs. It is to be established that all the tenants have held out one of them as their representative in their transactions with the landlord. If they have so held out one of them to represent them in the matter of the tenancy, they cannot complain if a decree for rent is obtained by the landlord against that representative and the entire tenancy brought to sale in execution thereof.

13. It was argued for the appellants in that case, as Sir Manmatha Nath Mukherji has done before us, that as the plaintiffs did not appear to have given the notice of succession required by Section 15 of the Tenancy Act, they were not entitled to relief; but the learned Judges held that failure on the part of heirs to comply with the requirements of the Section does not necessarily entitle the landlord to treat one of the several heirs of the original tenure-holders as representative the tenancy. A distinction has been made in several reported decisions between tenure-holders who are governed by Section 15 of the Tenancy Act, and raiyats who are under no such obligation: see, for example, 1923 PHCC 5716 but in 12 Pat 626, to which I have already referred, their Lordships of the Judicial Committee agreed with this Court in overruling the appellant's contention that the failure of defendant 5 to have her name entered on his sherista, along with the fact that she had never paid rent or been recognized by him as a tenure-holder, entitled him to proceed to the sale of the tenure without joining her as a defendant, observing that no such sanction as forfeiture of rights in the tenure in respect of failure to comply with the provisions of S. 11 is provided by the Act; such failure only affects the transferee's power to recover rents from his under-tenants as provided in sub-s. (4).

14. (The references are to the Chota-Nagpur Tenancy Act. Similar provisions are to be found in Sections 15 and 16 of the Bihar Tenancy Act). It cannot; therefore be said that the distinction made by Das J. in 1923 PHCC 57, following earlier cases, between tenure-holders and raiyats goes far to ground a presumption that the tenure-holder who omits to have his name registered must be taken to have acquiesced in the registered tenant representing him in their dealings with the Landlord; and as to representation in the case of raiyats, it was held in that case that it did not follow as a matter of law that a co-tenant represented the holding qua the landlord when all that was shown was that the tenant proceeded against in the rent suit was the only recorded tenant and was the head of the family. There was a similar decision in 7 Pat 129,17 in which it was held that evidence that the tenant proceeded against was the karbari of the family and paid the rent was not sufficient for the purpose of showing that the rent decree would bind all the co-tenants. The question of representation was, in the circumstances of this case, more a question of fact than an inference of law, and on the question of fact we are bound by the finding of the lower Appellate Court that the whole tenure was not represented in the certificate proceedings, which was arrived at independently of the erroneous view of the learned District Judge that a tenure cannot pass on a certificate sale unless all the tenants are named as certificate debtors. In my opinion, the contention of the appellants must be overruled. What passed at the certificate sales was not the mukarrari tenures but only the right, title and interest of the certificate debtors in them.

15. The next question is whether the sales were void, as held by the learned District Judge, in respect of the share of Bibhuti, by reason of the fact that, though alive at the time of “attachment,” he was dead at the time of the sale. On this point the learned District Judge referred to 6 PLT 6718 and 11 Pat 241.19 According to the former ruling, so far as it applies, the sale would be good notwithstanding Bibhati's death, unless set aside in appropriate proceedings. But the learned District Judge followed the later ruling in view of the present wording of Section 50 of the CPC, which has been copied in Section 52 of the Public Demands Recovery Act, and held that the sale was void. The apparent conflict between the two rulings was another reason why these appeals were referred to a Bench of three Judges. Now, in 6 PLT 67 the suit was brought by an heir of the deceased tenant for recovery of possession from the purchaser at a sale in execution of a rent decree.

16. The tenant had died after the attachment but before the sale in execution; and the learned Judges held, following the Full Bench decision of the Allahabad High Court in 12 All 440,20 18 CWN 76621 and other cases, that the failure of the decree-holder before the sale to bring on record the judgment-debtor's heirs did not render the sale a nullity, Kulwant Sahay J. after referring to the observation of Lord Hobhouse in 25 Bom 33722 that 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, concluded that the omission in that case had been taken to amount to an irregularity only, which did not render the sale invalid and null and void, but that such sale had to be vacated in one or other of the modes prescribed by law. As it has been suggested in some later cases that the ruling in 12 All 440 has been weakened by the substitution of the words “folly satisfied” for the words “fully executed” in what is now Section 50 of the CPC, I would hers point out that the sale in 6 PLT 67 took place before the present Civil Procedure Code came into force, and that as Varadachariar J. was inclined to think in 59 Mad 46123 (at page 487), the altered phraseology need hardly have any such effect necessarily. Coming now to 11 Pat 241, it must be observed at the outset that the question in that case arose on an application under O. 21, R. 90 and not in a suit brought after the confirmation of an execution sale. Nor was it a case in which the property sold had been attached before the death of the judgment debtor.

17. The sale was attacked on the ground that the legal representative had no notice served upon him under O. 21, R. 22, and what was decided was that a proper notice under that provision was not rendered unnecessary by the circumstance that execution had been previously taken out against the judgment-debtor himself. The sale was accordingly set aside in the execution proceedings and before confirmation—which is quite different from holding in other proceedings, as we are asked to do in the present appeals, that the sale was void. The learned Judges considered that the matter was concluded by the decision of the Judicial Committee in 42 Cal 72.24 and indeed, the notice in 11 Pat 241 was, like the notice in 42 Cal 72 not a notice to show cause why the decree should not be executed, but a notice only to show cause why the person addressed should not be substituted for the deceased judgment-debtors: 42 Cal 72 was however not a case under O. 21, R. 22. It was a case where the property of the judgment-debtors had been attached in execution of a money decree and an order for sale made. The judgment-debtors then became insolvent, and their property vested in the Official Assignee. The judgment-creditors merely took out a notice to the Official Assignee to show cause why he should not be substituted for the judgment-debtors as a party, and this notice was served; but without any further notice to the Official Assignee, the property attached was sold in execution. It was admitted on behalf of the decree-holders-auction-purchasers that attachment in execution of a money decree, followed by an order for sale, does not confer on the judgment-creditor any charge on the land; and this led Lord Thankerton to observe in 56 Mad 40525 that the decision of this Board in 42 Cal 72 was also referred to, but that decision proceeded on an admission by counsel. The point was not argued and the case in 5 Cal 14826 was not referred to.

18. Their Lordships held in 42 Cal 72 that the sale was altogether irregular and in-operative for more than one reason unconnected with the operation of Section 248 of the CPC of 1882, which corresponds to O. 21, R. 22, sub-r. (1) of the present Code. They also observed however that the execution could not proceed until the Official Assignee had been brought before the Court and an order binding on him had been obtained; in their opinion this could only be done by obtaining an order for the issue of, and by serving him with, a notice under S. 248, and they referred with approval to 20 Cal 370,27 in which it was held that a notice under S. 248 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. The case has therefore been taken as an authority for the view that the absence of a notice under O. 21, R. 22 is fatal to an execution sale.

19. The effect of non-compliance with this provision of the law was considered by a. Full Bench of the Madras High Court in 47 Mad 288,28 in which Schwabe C.J began by observing that if the matter had been free from authority, he would incline to the view that such non-compliance was a material irregularity, but not an illegality which would make the subsequent sale a nullity. Ramesam J. discussed three possible views of the effect of want of notice under O. 21, R. 22, having regard to the two cases dealt with in sub-r. (1), and felt no strong inclination in favour of any one of them. He therefore concurred in the unanimous decision of the Court, which was rested on the authority in 42 Cal 72 that want of notice made the execution sale void. The notice required in 47 Mad 288 however was a notice not to the legal representative of a party to the decree on the latter's death, under cl. (b) of the Rule, but a notice to one of the parties under cl. (a) on the ground that more than one year had passed since the date of the decree. O. 21, R. 22, sub-r. (1) puts both these grounds together, so that it is not possible to treat the notice under the rule as vital in the case of the legal representative with, out regarding it in the same light in the other case, namely where execution is sought more than one year after the date of the decree. This is what led Schwabe C.J, with whom Waller J. agreed, to hold that even in those cases in which a notice is required on ground (a), the absence of the notice goes to jurisdiction and makes the execution sale void, the ruling in 42 Cal 72 being taken as decisive in cases relating to ground (b).

20. But there are decisions by our own and other High Courts upholding execution sales notwithstanding the absence of a notice under O. 21, R. 22. Thus, in 7 Pat 790,29 the judgment-debtors had succeeded in getting one execution sale set aside on the ground of suppression of the notice under O. 21, R. 22. Fresh sale proclamations were issued and the property was sold again, and the judgment-debtors again urged that the sale should be set aside for want of notice under O. 21, R. 22. Kulwant Sahay J., with whom Maopherson J., agreed, observed that under the circumstances there was no sense in insisting on the issue of fresh notice under O. 21, R. 22, and no necessity to do so as the object of the provision had been attained when the judgment-debtors appeared in Court and raised objections to the execution. The sale was therefore upheld notwithstanding the fact that no notice under O. 21, R. 22 had been served on the judgment-debtors. This decision was followed by Rankin, C.J and Ghosh J. in 35 CWN 9,30 in which the judgment-debtors had actually appeared in response to a notice under O. 21, R. 66 and contested the proceedings relating to the valuation of the property. They afterwards attacked the sale on the ground that no notice under O. 21, R. 22 had been served upon them. It was contended that as it had been held in 42 Cal 72 that notice under R. 22 is a condition precedent and without it the Court has no jurisdiction the objection could be taken at any time. Rankin C.J, observed that it was quite unnecessary to push the abstract logic of the case in 42 Cal 72 to this ridiculous extreme, and that it appeared to him to be merely piling unreason upon technicality to hold in the circumstances of the case that it was open to the judgment-debtors to object to the jurisdiction of the Court because they had not got a formal notice to do something, namely to dispute the execution of the decree, when in point of fact they were busy disputing about it in all the Courts for the best part of the last two years. Cases of this kind are distinguishable from 11 Rang 79,31 in which Page C.J, said that though the notice under O. 21, R. 22 goes to jurisdiction it would be mere pedantry to allow a party to dispute the validity of an execution sale on the ground that the notice was not served upon him if he was aware of the proceedings and had let the decree-holder obtain a consent order on an application to stay the sale. This was on the principle renunciavit juri pro se introducto; but it is not easy to reconcile the former decisions with the view that the notice under O. 21, R. 22 goes to jurisdiction strictly so called. It is also not unimportant that since the decision of the Privy Council in 42 Cal 72 S. 248, to which their Lordships referred, has had an addition made which we find in sub-r. (2) of O. 21, R. 22. Under this subrule, nothing in sub-rule (1) is to preclude the Court from issuing any process in execution of a decree without issuing the notice thereby prescribed if, for reasons to be recorded, it considers that the issue of such notice would cause unreasonable delay or would defeat the ends of justice. This subrule has sometimes been regarded in the light of a provision giving jurisdiction in certain cases in which without it the Court would have none see, for instance, Schwabe C.J's observations at p. 302 of the report in 47 Mad 288. But as Varadachariar J., points out in 59 Mad 461 it seems clear that if the Court had no jurisdiction aliunde, the new sub-rule will not operate to confer it on the Court.

21. In my opinion, the importance of this sub-rule in determining the real character of the notice arises from the consideration formulated by Mookerjee J, in 11 CLJ 48932: the language of the provision for a notice may be mandatory, but this is by no means conclusive, and one test of its real character is whether the notice can in any circumstances be dispensed with. This difficulty in regarding the notice as vital was pointedly referred to by Mukerjee J. in 58 Cal 825,33 where one of the judgment-debtors had applied to set aside a sale under O. 21, R. 90 and Section 47 of the CPC. So far as O. 21, R. 90 was concerned, the application was found to have no substance. As regards S. 47, the application showed that no notice under O. 21, R. 22 had been served on her. Mukerjee J. with whom Mitter, J. agreed, referred to the approval by the Judicial Committee in 42 Cal 72 of the dictum in 20 Cal 370 regarding the notice under Section 248 of the old CPC, and observed:

This interpretation of the law has been applied to O. 21, R. 22, sub-r. (1) of the CPC, since the Code of 1908 came into being, and it is perhaps too late to contend that in view of the insertion of sub-r. (2), nothing corresponding to which there was in S. 248 in the Code of 1882 what was under the Code of 1882 regarded as want of jurisdiction should now only be regarded as an irregularity, the effect of which would depend upon the circumstances of each particular case. In any event, no Court will perhaps have the courage to say until the Judicial Committee have another opportunity of considering the matter in the light of this sub-rule and of pronouncing an opinion in favour of this view…….I have ventured to refer to this view merely because I find it very difficult to reconcile the view as to absolute want of jurisdiction with what the sub-rule says….

22. I have already referred more than once to the Full Bench decision in 59 Mad 461. The judgment-debtor in that case died a week before the date fixed for the sale and after his property had been attached in execution, the sale proclamation settled, and the order for sale passed. The decree-holder and his vakil were aware of the death, but no application was made under Section 50 of the CPC, for leave to execute the decree against the legal representatives, and no notice was served on them in accordance with O. 21, R. 22. At the sale the property was purchased by a stranger. On an application by the legal representatives under S. 47 and O. 21, R. 90 it was held that the sale was void, and not merely voidable, for want of the notice. The judgments of the learned Judges contain an exhaustive discussion of the contrary view taken in Allahabad and Calcutta ever since the decision of Edge C.J (in concurrence with the majority of his colleagues) in 12 All 440. The decision was rested principally (1) on the authority in 42 Cal 72 approving 20 Cal 370 and (2) on general principles as to the effect of the death of a party or the jurisdiction of the Court, as there can be no execution against the mere “estate” of a deceased judgment debtor. Cornish J. pointed out (at p. 473 of the report) that 42 Cal 72 was not a case of execution of a decree against the legal representative of a deceased judgment-debtor, and at the time the definition of legal representative ‘as a person who in law represents the estate of a deceased person’ had not been introduced into the Code.

23. The learned Judge however held that the matter was concluded by the approval in 20 Cal 370 a case in which (it is to be observed) the decree itself had been found to be fraudulent, and that the new sub-section operates to give a special power of dispensation, a view which I have already shown to be open to doubt. Varadachariar J. referred inter alia to the unsatisfactory way in which the placing together of the two classes of cases referred to in sub-r. (1) “as if they stood on the same footing for all purposes” had been dealt with in several decisions. Speaking with the utmost respect, it does not seem to me that the decision makes sufficient allowance for the peculiarities in 42 Cal 72 or for the effect of sub-s. (2) of O. 21, R. 22, to say nothing to Lord Thankerton's observations in 56 Mad 405, while the circumstance that under O. 21, R. 90 (read strictly) an execution sale can only be set aside in certain conditions which did not obtain in the Full Bench case may partly have led to the decision (see p. 489 of the report).

24. I have ventured to refer to these considerations in particular, because they do not apply, as will be presently seen, to sales under our Public Demands Recovery Act. Even under the Civil Procedure Code, the view taken in 12 All 440 has been consistently followed in Calcutta and was followed in this Court in 6 PLT 67, which was doubtless not referred to in the later decision in 11 Pat 241 because there was no question of any attachment pending at the death of the judgment-debtor in it. In 12 All 440, Edge C.J was of opinion that property under attachment must be considered as in the custody of the law. Section 234 of the CPC, (corresponding to S. 50 of the Code now in force) was in his opinion, applicable only to cases in which, after the death of the judgment-debtor the decree-holder seeks to bring to sale property which was of the judgment-debtor in his lifetime, and which was not, at the time of his death, under attachment at the suit of the judgment-creditor. Having regard to the provisions of S. 276 (now our S. 64) the representative could not as against the judgment-debtor “duly” dispose of the property under attachment, and there was no reason to provide in S. 234 a means by which to ascertain the liability of the representative in respect of property under attachment at the suit of the judgment-creditor. The learned Chief Justice also referred to the absence of any Section in the Code which provided that the legal representative, any more than a stranger whose property is sold, was to get notice of the sale of property under attachment, except as one of the public by the proclamation of the sale which is required under the Code. If this last consideration has lost some of its force since the Code of 1908, as pointed out in one of the recent Allahabad decisions, on account of the new provision for notice to be given to the judgment-debtor before drawing up the sale proclamation (see sub-r. 2 of O. 21, R. 66), it seems obvious that the omission of this notice, whether or not it may furnish a good ground for setting the sale aside under O. 21, R. 90, does not go to jurisdiction so as to render the sale a nullity.

25. After the decision of this Court in 6 PLT 67, 12 All 440 was followed in 32 CWN 418,34 which unlike 6 PLT 67, was governed by Section 50 of the present CPC. This was a case in which the judgment-debtor had died after service of the sale proclamation and the notice of attachment. The sale was held without bringing the representatives of the jndgment-debtor on the record. Bankin C.J, considered the question whether the omission was more than an irregularity, and after referring to the decision of the Privy Council in 32 Cal 296,35 followed the view taken in Calcutta decisions ending with 45 CLJ 7336 and also in a Madras case which has since been overruled by the Full Bench in 59 Mad 461, and held that failure to bring the legal representatives on the record does not necessarily involve that the sale is not binding upon the heirs. The considerations set out by Edge C.J in the case from 12 All 440 were referred to by Varadachariar J., in the Full Bench case from 59 Mad 461, but taken to be insufficient to support the view that in such a case the absence of a notice to the legal representative does not make the execution sale null and void. We have however an unbroken course of decisions in these parts regarding cases where property under attachment is sold after the death of the judgment-debtor; in 20 Cal 370 there was not attachment before the judgment, debtor's death.

26. It seems to me, moreover, that we are not called upon in these appeals, coming as they do under our present Public Demands Recovery Act, to decide whether the Madras view as regards O. 21, R. 22 should be adopted. For, in the first place, our Act, though passed in 1914, contains no provision much like that Rule. Unlike the Bihar Tenancy Act, which by Section 143 imports the CPC generally, it provides a complete procedure for the execution of certificates modelled on the Civil Procedure Code but not without several important departures from it. Under the former Public Demands Recovery Acts, a certificate duly filed had, in so far as regards the remedies for enforcing it, the force and effect of a decree of a Civil Court, but there is no such provision in the present Act. S. 46 of the Act gives exclusive jurisdiction for the purposes of execution of the certificate officer on much the same lines as Section 47 of the CPC, but with the important difference that unlike sub-s. (3) of the later Section there is no provision empowering the certificate officer to determine the question whether any person is or is not the representative of a party for the purposes of the execution. The certificate officer is plainly not intended to deal with questions of title, but is to proceed (as a rule) against; the right, title and interest of the certificate debtor; and service of the notice prescribed by S. 7 operates, under S. 8, at once and without any actual attachment, not only to render any private transfer of his interest in any immovable property void against any claim enforceable in execution of the certificate but also to charge upon it the amount recoverable under the certificate, and does all this even before the certificate debtor has had any opportunity of being heard—a good indication of the summary character of the special procedure provided by the Act.

27. The Act is confined to the recovery of public demands, as defined in S. 3(b), and these are demands of a character which cannot be resisted on such grounds, as for instance, that the certificate debtor was not justified by family necessity in subjecting himself to them. Part IV of the Act carefully shuts out the jurisdiction of the Civil Courts to interfere except in certain specified contingencies. No certificate “duly filed” under the Act can be cancelled or modified by a Civil Court, even if the alleged debt was wholly or in part not due from the certificate debtor, unless (speaking generally) he has first urged that ground before the certificate officer, and in the case of the demands mentioned in the first two Articles of Schedule I also paid those demands within a limited time if he should have been served with the notice under S. 7. Nor can the sale be set aside in such a suit without a direction for the refund of the purchase money to the certificate purchaser.

28. It is also to be observed that the charge created by S. 8(b), which goes much further than, say, the charge we find in Section 65 of the Bihar Tenancy Act, can only be enforced in the certificate proceedings. The interest of the certificate debtor is thus at the disposal of the certificate officer in a much higher sense than the interest of the judgment-debtors in 42 Cal 72 could be said to have been at the disposal of the executing Court. The powers of the certificate officer as regards the execution of certificates are also on a very different footing from those of an executing Court. He can, in particular, set aside sales on grounds not to be found in O. 21, R. 90, confined as the latter is to material irregularities in publishing or conducting sales. (I am here leaving out fraud because our Act expressly saves this for the Civil Court.) S. 29(1) authorizes the certificate officer to set aside a sale on the ground of a material irregularity in the certificate proceedings as well, and also on the ground that notice was not served under S. 7. If any notice is to be regarded as vital to the proceedings of the certificate officer, one would have thought that it is the notice under S. 7 to the certificate debtor and yet Ss. 29 and 45 make it quite clear that even this notice does not go to the jurisdiction of the certificate officer to sell the property of the certificate debtor. For, under S. 29, a certificate sale can be set aside on the ground that the notice was not served only if the certificate debtor pays the amount found due from him, while S. 45 expressly provides that no sale of immovable property in execution of a certificate shall be held to be void on such a ground, but that a suit may be brought in a Civil Court to recover possession of such property or to set aside such sale on that ground, subject, however, to two provisos which bring into relief the point that I am now elaborating. In the first place, the suit must be brought not more than one year after the delivery of possession to the purchaser—a condition that is not satisfied in our Suit No. 66; and secondly, no such suit can be entertained if the certificate debtor has appeared in the certificate proceedings or applied under S. 28.

29. It seems to me from all this that the certificate officer's jurisdiction to sell is founded in a “duly filed” certificate, and not on the actual existence of the certificate debt nor on the service of the notice under S. 7 on the certificate debtor himself. As to any notice to the legal representatives of a deceased certificate debtor, the omission of any provision like O. 21, R. 22, recalls Edge C.J's observations in 12 All 440 with additional force derived from the special scheme of our Act (as already pointed out); and it seems to me impossible, from any point of view, to place such a notice on a higher footing than the notice to the certificate debtor. Having regard to what may be called the irresistible character of the demands enforcible under the Act and to the fact that demands of revenue and rent are, even apart from the Act, charged upon the properties concerned, the Legislature appears to have provided by this Act a special procedure by way of execution against the properties themselves, taking care, as it has done in S. 29(2), to empower the certificate officer (subject to appeal to and revision by the higher revenue authorities) to entertain applications for setting sales aside (on payment of the amounts found due) without limit of time if there should be reasonable grounds for so doing.

30. It is no doubt true, in general, that it is against all principles to proceed against a party until he has been brought before the Court or all proper steps to bring him before the Court have been taken ineffectually; but even under the Civil Procedure Code, it is possible in extreme cases for a party to find himself bound by orders passed behind his back. In 25 Bom 337, the true heirs of the deceased judgment-debtor lost their right to redeem the mortgage by reason of an execution sale to which, on account of an erroneous order of the executing Court, they were no parties. 45 CLJ 73 like some earlier rulings, was a case under the (Bengal) Public Demands Recovery Act. On the whole, I can see no good reason why we should depart from our unbroken course of decisions, on the strength of which many titles must have been acquired by bona fide purchasers under the summary procedure provided by the Public Demands Recovery Act, by allowing a challenge to the jurisdiction of the certificate officer on a ground which, assuming the Madras decisions to be right, will have to be imported into the Public Demands Recovery Act on general considerations. My conclusion on this part of the case therefore is that 11 Pat 241, so far as it might seem to express a view different from that taken in 6 PLT 67, is inapplicable to the facts of the present cases and that it is sufficient to say that the trial Court was right in following the decisions in 6 PLT 67 and 45 CLJ 73. I would hold, differing from the lower Appellate Court, that the sales were not void in respect of the share of Bibhuti.

31. The last contention on behalf of the appellants is that if, as the lower Courts have held, all the eleven plaintiffs except three that we are now dealing with were estopped in two suits other than Title. Suit No. 66, the declaration given by the Court should have been, not that the certificate sales affected only the shares of the certificate debtors named in the certificate proceedings, but that the right, title and interest of the three excepted plaintiffs are not affected by the certificate sales in those two suits. This contention must plainly be accepted. Those three plaintiffs will also be entitled to a similar declaration in Title Suit No. 66. The result is that I would allow these appeals in part and modify the decrees of the lower Appellate Court as indicated. I would also give the appellants their costs of this appeal in proportion to their success.

Manohar Lall, J.:— I have had the advantage of seeing in advance the judgment prepared by my learned brother Dhavle J. I agree to the terms of the orders which he proposes to make in these appeals; but I reserve to myself the right to examine, when an appropriate occasion arises, the correctness of the proposition that a certificate officer while proceeding to enforce a certificate under the Bihar and Orissa Public Demands Recovery Act (4 of 1914) has jurisdiction to sell the estate of, or the right, title and interest of, a certificate debtor who has died between the date of the service of notice on him under S. 7 of the Act and the date of the actual sale without the issue of a notice to his legal representative. This question, as I shall show just now, does not properly arise for decision in these appeals. Two appeals arose out of Suits Nos. 65 and 67 in which the facts are similar and concern a certificate which was issued for the realisation of rent for 1337 Fasli. Notices under S. 7 were served on 6th November 1930, and the sales were actually held on 23rd March 1931. It has been found as a fact that one of the certificate-debtors, Bibhuti, had died on 4th January 1931, and therefore before the sale was actually held. On 23rd March 1931 objections to the sale were filed under S. 29 of the Act by a number of certificate debtors or their representatives including the heirs of Bibhuti. On 6th July 1931, the patties entered into a compromise with the auction-purchaser and promised to pay the amount fixed by the compromise by 22nd December 1931, failing which they agreed that the sales should be confirmed. As no payment was made the sales were confirmed on 22nd December 1931. These sales were set aside subsequently by the Collector, whose order was affirmed by the Commissioner, but the Board of Revenue reversed the decision of the Collector and the Commissioner and confirmed the sales. It is clear from this narrative of events that the sales cannot be set aside so long as the compromise entered into by the parties dated 6th July 1931 is not successfully impeached. As no argument has been advanced that the compromise entered into was fraudulent, I am of opinion that the appellants cannot have the sales set aside. I therefore agree with the order which is proposed to be passed in the appeals arising out of these suits though on different grounds.

32. The appeal which arises out of Suit No. 66 concerns the realization of arrears of rent for 1336 Fasli by means of a certificate which was filed on 20th August 1931. The notice under S. 7 was served on 12th September of the same year. The sale which was held on 12th May 1930 was set aside and a new sale was ordered which took place on 26th January 1931, after the death of Bibhuti on 4th January 1981. The delivery of possession to the auction-purchaser was made on 3rd January 1932, and the present suit was instituted on 4th April 1934, for a declaration that the sale is void and did not affect the interest of the appellants including the heirs of Bibhuti, and in effect for recovery of possession of the properties sold, mainly on the ground that the sale was void because the notices required by S. 7 had not been served. S. 52 of the Act provides the procedure that should be observed when a certificate-debtor has died before the certificate has been fully satisfied, as in this case. That procedure is that the certificate-officer after serving upon the legal representative of the deceased a notice in the prescribed form can proceed to execute the certificate against such legal representative; and the provisions of this Act shall apply as if such legal representative were the certificate-debtor and as if such notice were a notice under S. 7. In this case the procedure prescribed by S. 52 was admittedly not followed. The legal representative of the deceased Bibhuti, therefore had a right to institute a suit for recovery of possession or for a declaration that the sale should be held to be void on the ground that the notice provided by S. 52 had not been served upon him after the death of Bibhuti. That notice is declared by the statute to be a notice under S. 7. It will be noticed from the dates which I have given above that the present suit has been instituted beyond one year from the date on which the possession of the property was delivered to the auction-purchaser. That being so, the suit of the appellants as the legal representatives of Bibhuti cannot be entertained by reason of the proviso to S. 45 which enacts that no such suit shall be entertained if instituted more than one year from the date on which possession of the property was delivered to the purchaser. For these reasons I agree with the order that is proposed to be passed in this appeal although I have arrived at the same conclusion on a different ground.

Harries, C.J:— I have had the advantage of seeing the judgment to be delivered by Dhavle J. and agree to the order which he proposes to make. I however agree with Manohar Lall J. that the question whether a certificate officer has jurisdiction to sell the estate of, or the right, title and interest of, a certificate-debtor who has died between the date of the service of notice on him under Section 7 of the Bihar and Orissa Public Demands Recovery Act, and the date of the sale does not arise in this case. As at present advised, I am not satisfied that a certificate officer has such jurisdiction and I prefer to refrain from expressing a definite opinion until the facts of the case make it necessary for me to do so.

D.S/R.K

33. Decrees modified.