Bookmark
PDF
Share
CaseIQ

S.N. Kagunathasami Ayyangar v. G. Gopaul Rao

Madras High Court

Aug 31, 1921

Judgment

Subsequent
References

CaseIQ

Important Paras

Please sign up to view Important Paras.

Smart Summary (Beta)

Factual and Procedural Background

The suit underlying this appeal was instituted by an assignee on the basis of a mortgage-deed dated 3-11-1896 to recover the mortgage amount from the heir of the mortgagee, Ayyasami Pillai. The principal defence was that the mortgage had been extinguished by a decree in O.S. No. 11 of 1898 and the subsequent execution proceedings in that suit. That prior suit related to an earlier mortgage dated 17-3-1896 in which Ayyasami was the eighth defendant. In his written statement he had stated he had no objection to a decree and prayed that any balance after sale and discharge of the decree-holder be applied towards his mortgage.

Other defendants in O.S. No. 11 of 1898 originally contested but ultimately filed a compromise petition by which the amount to be decreed was determined and a compromise decree was passed. A decree directed sale of the properties; the present court observed that Ayyasami's name appears in the cause title of that decree and the record was not amended to remove him. The property was sold on 9-7-1904, but Ayyasami died on 6-4-1904, prior to the sale, and his legal representatives were not brought on the record during execution. The Subordinate Judge held that the sale could not affect his interests.

The appeal raises whether the prior decree and its execution extinguished Ayyasami's (or his successors') mortgage and whether the sale in execution was a nullity because the deceased judgment-debtor's legal representatives were not placed on record. Additional procedural matters include the truth of a payment of Rs. 250 on 15-2-1904, directions regarding an indemnity bond in the decree, and the period allowed for redemption.

Legal Issues Presented

Whether the decree in O.S. No. 11 of 1898 and its execution operated to extinguish the subsequent mortgage of Ayyasami (i.e., whether Ayyasami was bound by and affected by that decree).
Whether execution proceedings culminating in the sale of the property after the death of the judgment-debtor, without bringing his legal representatives on the record, render the sale a nullity (void) or merely voidable.
Whether procedural irregularity in not placing the deceased judgment-debtor's legal representatives on the record can be cured by limitation (i.e., whether the sale stands because an application to set it aside was not made within limitation periods such as Article 166 or Article 12 of the Limitation Act).
Whether the payment of Rs. 250 on 15-2-1904 was proved and whether, consequently, the suit was barred.

Arguments of the Parties

Appellants' Arguments

Contended that Ayyasami was a pro forma defendant in O.S. No. 11 of 1898 and thus could not be regarded as a judgment-debtor whose interests required bringing legal representatives on record after his death.
Argued that execution proceedings after the order for sale are administrative (not adjudicatory) and that irregularity in not bringing legal representatives on record makes the sale merely voidable; since no application to set aside the sale was made within thirty days (Article 166 Limitation Act) or within one year (Article 12), the sale should stand.

Respondent's / Other Relevant Positions

The respondent (as represented by vakil) argued that Ayyasami was not a party to the decree; the court rejected this contention, noting Ayyasami's name in the cause title and absence of any application to strike his name out.
It was argued (by the Court in analyzing authorities) that when a judgment-debtor dies before the decree is fully satisfied the decree-holder must follow Section 50 of the Civil Procedure Code to execute against legal representatives, and failure to do so may render execution proceedings void.
The plaintiff (in a memorandum of objections) objected to parts of the judgment and decree directing the plaintiff to execute an indemnity bond for Rs. 3,775 in favour of reversioners of Ayyasami; the plaintiff contended those reversioners were not parties and the direction was unjustified.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Sri Gopal v. Pirthi Singh (1902) I.L.R. 24 All. 429 (P.C.)	That a decree directing sale of properties "free of" a mortgage affects and binds the mortgagee.	Used to support the proposition that the decree in O.S. No. 11 affected Ayyasami and would extinguish his mortgage if duly executed.
Mallikarjun v. Narahar (1900) I.L.R. 25 Bom. 337 (P.C.)	Where the Code's procedure for bringing legal representatives on record is followed, the court may exercise jurisdiction and even if it errs, that exercise of jurisdiction is valid.	Relied on by appellants but distinguished: in the present case the Code procedure was not followed, so Mallikarjun does not help the appellants.
Khairajmal v. Daim (1904) I.L.R. 32 Cal. 296, 315 (P.C.)	Case of the decree itself being void.	Cited as support for the proposition that an execution sale affecting an unrepresented estate may be void.
Rashid Un-nissa v. Mohamad Ismail Khan (1909) I.L.R. 31 All. 572	Authority holding that execution proceedings carried out against a dead person (or no person) are void.	Adduced as clear supporting authority that the sale in execution without representation was a nullity.
Paidanna v. Lakshmi Narasimha (1914) I.L.R. 38 Mad. 1076	Execution proceedings obtained against a minor legal representative without a proper guardian ad litem are void.	Used a fortiori to support that execution against a deceased person (or without any representative) is void.
Sheo Prasad v. Hira Lal (1889) I.L.R. 12 All. 440	Earlier decision cited as being in favour of the appellants (on related matters).	The court described such decisions as based on unclear grounds and of limited value in the present context.
Abdur Aba v. Dhondu Bai (1894) I.L.R. 19 Bom. 276	Earlier decision appearing to support appellants' position.	Regarded as not of much value because ultimately based on grounds not quite clear.
Emmaswami v. Bagirathi (1883) I.L.R. 6 Mad. 180	One of earlier Madras decisions on execution irregularities.	Court regarded the value of this decision as limited for the present controversy.
Krishnayya v. Unnissa Begum (1891) I.L.R. 15 Mad. 399	Decision where defect characterised as material irregularity causing substantial injury.	Court treated the findings as inconclusive and of little assistance to appellants.
Grovez v. Administrator General (1898) I.L.R. 22 Mad. 119	Madras decision on sale in execution and irregularities.	Described as decidedly against the appellants; the court agreed with its clear language.
Rayarappa Napibiar v. Malihandi Akath Mayan (1914) 26 M.L.J. 267	Madras decision on related execution procedure issues.	Cited as against appellants and supportive of holding that sale should be declared void.
Narayana Kothan v. Kaliyanasundaram (1895) I.L.R. 19 Mad. 219	Decision referenced in discussion of authorities.	Not a case of death of a judgment-debtor; the court did not consider it relevant to the present point.
Muhammad Raft v. Muhammad Askari (1916) 37 I.C. 433	Decision cited among many authorities.	Noted but not directly on point as it does not involve judgment-debtor's death.
Seshagiri Row v. Hanumantha Row (1915) I.L.R. 39 Mad. 1031	Decision on execution/sale issues.	Cited but not treated as central because it does not concern death of judgment-debtor.
Lala Ganpat Lal v. Bindbaasni Prasad Narayan Singh (1920) 39 M.L.J. 108	Decision in the line of cited precedents.	Noted among cases not directly deciding the present precise point.
Net Lall Sahoo v. Shaikh Kareem Buse (1896) I.L.R. 23 Cal. 686	Calcutta decision in which the heirs were parties to execution proceedings.	Distinguished on the ground that heirs were made parties in that case.
Bepin Behari Bara v. Sasi Bhusan Batta (1914) 18 C.W.N. 766	Sale under the Public Demands Recovery Act (Bengal Code).	May be distinguished because the sale arose under a different statutory scheme; the opinion noted some deference to Madras cases in that report.
Jagadish Bhattachargee v. Bama Sundari Dasyi (1919) 23 C.W.N. 608	Decision in a money decree context; reference to earlier decisions.	Noted as following some earlier authorities; the court observed Richardson, J. followed certain precedents.
Mussamati Rukini v. Jodha Singh (1913) 19 I.C. 120	Decision on related execution issues.	Characterised as possibly inconclusive but discussed in the context of distinguishing Mallikarjun v. Narahar.
Sita Ramayya v. Gopala-krishnamma I.L.R. 43 Mad. 57	Decision discussing distinction between attachment and sale applications in execution (Order 21 Rule 22).	Held not to assist appellants because the application there was made against the judgment-debtor himself and Section 50 CPC was not in issue.
Rahunath Das v. Sundara Dos Khatri I.L.R. 42 Cal. 72 (P.C.)	Decision on Order 21, Rule 22 (attachment/sale distinctions).	Referred to in the context of Sita Ramayya; not directly applicable to present case.

Court's Reasoning and Analysis

The court proceeded in a series of analytical steps grounded in the pertinent statutory provision and prior authorities:

The court accepted the premise that a decree directing sale of properties "free of" a subsequent mortgage can, if duly executed, extinguish that later mortgage (citing Sri Gopal v. Pirthi Singh).
It then examined whether, in this instance, the decree had been "duly executed" so as to affect Ayyasami's interest. A critical factual point is that Ayyasami died on 6-4-1904 and his legal representatives were not brought on the record before the sale (9-7-1904).
Turning to Section 50 of the Civil Procedure Code (corresponding to Section 234 of the old Code), the court held that when a judgment-debtor dies before the decree has been fully satisfied, the decree-holder must apply to the court to execute the decree against the legal representative. The court treated the word "may" in the section as tantamount to obligation (i.e., the procedure is mandatory if the decree-holder wishes to proceed further).
The court reasoned that it would be opposed to fundamental notions of justice to allow legal proceedings affecting an estate to be taken without some person on the record representing that estate; consequently, execution proceedings taken without the deceased judgment-debtor's legal representative on record are not merely irregular but are void (a nullity).
The court distinguished authorities on which the appellants heavily relied (notably Mallikarjun v. Narahar) on the ground that in those cases the statutory procedure to bring legal representatives on the record had been followed. Mallikarjun therefore did not assist the appellants because, in the present case, the Code procedure was not complied with.
The court surveyed other decisions and treated a line of authorities (for example Khairajmal v. Daim, Rashid Un-nissa, Paidanna v. Lakshmi Narasimha) as supporting the view that execution sales conducted without representation of the deceased judgment-debtor are void. It regarded certain older decisions that seemed to favour appellants as of limited or unclear value and preferred the clear language of Madras decisions and All-India authorities holding the sale to be a nullity.
The court addressed the appellants' contention that execution after order for sale is administrative and that irregularity is only voidable and susceptible to being cured by limitation. The court rejected this contention: while some execution steps may be administrative in nature, execution proceedings are nonetheless judicial acts of a court and if not legally carried out may be materially defective; where the defect is absence of legal representation after death of judgment-debtor, the defect is jurisdictional and renders the sale void.
On the facts, having found that Ayyasami's interest was not represented in the execution proceedings after his death, the court concluded that the sale did not lawfully affect his interest and therefore did not extinguish his mortgage.
On the discrete factual point of the alleged payment of Rs. 250 on 15-2-1904, the court found "the evidence is all one way" and accepted the finding of the court below that the payment was true; on this basis the suit was not barred.
The court also considered plaintiff's memorandum of objections to parts of the decree that required the plaintiff to execute an indemnity bond for the reversioners of Ayyasami. The court agreed with the plaintiff that directions for the benefit of absentee reversioners (who were not parties) were unjustified and ordered Clause (3) of the decree deleted.

Holding and Implications

Core Holding: The appeal is dismissed with costs. The execution of the decree in O.S. No. 11 of 1898 was not carried out so as to affect Ayyasami's interest because his legal representatives were not placed on record; accordingly, his subsequent mortgage was not extinguished.

Direct consequences for the parties:

The sale in execution of O.S. No. 11 of 1898 is treated as not having lawfully affected Ayyasami's interest; his mortgage remains extant.
The court accepted the lower court's finding that Rs. 250 was paid on 15-2-1904 and on that basis held the suit is not barred.
The appeal is dismissed with costs.
The plaintiff's cross-objection is allowed: the direction that the plaintiff should execute an indemnity bond for Rs. 3,775 in favour of reversioners of Ayyasami (who were not parties) is deleted (Clause (3) of the decree is to be removed).
Time for redemption is extended to 28-2-1922.

Broader legal implication: The court reaffirmed that where a judgment-debtor dies and the decree-holder wishes to continue execution, Section 50 CPC prescribes the necessary procedure; failure to bring the legal representative on the record may render execution proceedings (and consequent sales affecting the estate) a nullity rather than merely voidable. The opinion emphasises that such defects go to jurisdiction or the legality of affecting an estate without representation and are not always cured by limitation or treated as purely administrative irregularities.

Show all summary ...

1. I agree with the judgment about to be delivered and have nothing to add, to it.

Ramesam, J.

2. The suit out of which this appeal arises was brought on foot of a mortgage-deed dated 3-11-1896 for the recovery of the mortgage amount, by an assignee, from the heir of the mortgagee, Ayyasami Pillai. The main defence is that the mortgage was extinguished by reason of the decree in O.S. No. 11 of 1898 and the proceedings in its execution. That suit was based on a prior mortgage dated 17-3-1896 "and Ayyasami was the 8th defendant therein. In his written statement (Ex. V c) he stated that he had no objection to the passing of a decree and prayed that the balance, after selling the property and paying off the amount due to the plaintiff might be paid towards his mortgage. The other defendants, in that case originally contested the suit but afterwards filed a. compromise petition (Ex. C) by which the amount to be decreed was determined and a compromise decree (Ex D) was passed. The learned vakil for the respondent argued that Ayyasami was not a party to that decree. I cannot agree to this contention. His name appears in the cause title of the decree and the court was not even asked to strike his name out of the record. The suit cannot be regarded as still pending so far as he is concerned nor can it be said that it was dismissed as against him. It follows therefore that the decree directing the sale of the properties without reserving his right (i.e.) free of his mortgage Vide Sri Gopal v. Pirthi Singh (1902) I.L.R. 24 All. 429 (P.C.) is a decree affecting him and is binding on him. If duly executed, it ought to extinguish his mortgage.

3. The property was sold on 9th July 1904 (Ex. VII); some time before the sale, (i.e.) on 6-4-1904., Ayyaswami died and his legal representatives were not brought on record. In these circumstances, the Subordinate Judge held that the sale could not effect his, interests. It is contended for the appellants that Ayyasami was a pro forma defendant and cannot be regarded as a judgment-debtor and it was not necessary that his legal representatives should be brought on the record. This contention is inconsistent with the main plea that he was a party to the decree and his mortgage, was therefore extinguished. A second mortgagee when, impleaded in a prior mortgagee's suit is not a pro forma defendant. He can redeem the earlier mortgage by paying up the decree amount at any time before the sale. He can apply to set aside the sale under Order 21, Rule 89 or 90. He can apply that the balance of the sale proceeds after discharging the prior mortgagee's dues may be paid to him. Though it is true that, what was mortgaged to the plaintiff in that suit was the mortgagor's property as it stood on 17-3-1896 and therefore, the plaintiff could get the property sold free of subsequent encumbrances, the plaintiff could do this only by a properly constituted suit and proceedings in execution i.e., by impleading the puisne mortgagee or his repre, sentatives and the interest of the mortgagor which the prior mortgagee would then be entitled to sell may be said to comprise, at the time of the sale, the interest of the subsequent mortgagees and the mortgagor's equity of redemption. I am therefore of opinion that Ayyasami was a judgment debtor in O.S. No. 11 of 1898.

4. It is next contended that the sale is not a nullity. It is said (1) that the proceedings in the execution of a mortgage decree after the order for sale is passed (and the proceedings in the execution of a money decree after the order for attachment is made) are administrative and (2) that the irregularity in not bringing the legal representatives of the judgment-debtor on the record will only make the sale voidable and as it had not been set aside within thirty days of the sale (Article 166 Limitation Act) or within one year, (Article 12) the sale stands, not being a nullity. It may be that some proceedings in execution after an order for sale is made do not amount to the '' determination of any question within Section 47 of the Code of Civil Procedure, 1908" so as to amount to a degree, for the purpose of being appealed against (See Sivagami Achi v. Subramaniya Iyer (1903) I.L.R. 27 Mad. 259 (F.B.), and may be said to be "administrative" as opposed to "adjudicating" in the sense that they do not adjudicate a right but carry out some prior order, but they are none the less judicial proceedings in the sense that they are the proceedings of a. court of justice and not of an executive' authority and if not, legally carried out, may be materially defective. This leads me to the next question as to the nature and effect of the defect in the proceedings.

5. Section 50 of the Civil Procedure Code (corresponding to Section 234 of the old Code) lays down that

" Where a judgment debtor dies before the decree has been fully satisfifed the holder of the decree may apply to the court which passed it to execute the same against the legal representative of the deceased."

It is obvious that' the word 'may' in this section is equivalent to 'shall', for except in the sertse that the decree-holder may, if he chooses, drop the execution altogether, there is no option left to him and it is imperative on him to follow the procedure enjoined by the section, if he desires further execution. As it is opposed to all notions of justice to alow legal proceedings to be taken against an estate without there being some person in the record to represent the estate, one would suppose that such proceedings in execution taken without having the legal representative, of a deceased judgment-debtor on the record are void and do not amount to a mere irregularity. It is difficult to see how, for this purpose, any distinction can be drawn between the case of a judgment debtor's death before the order for sale is passed and the case of a death after the order. The estate has to be represented on the record by some one interested in watching the proceedings until the sale is confirmed., I will now examine the cases on the point.

6. The case of Mallikarjun v. Narahar (1900) I.L.R. 25 Bom. 337 P.C. was very much relied on for the appellants but in my opinion does not help them, 'in' that case the procedure laid down by the Code was followed. An application was made to bring the legal representatives of the deceased judgment-debtor on the record. The court received the application and did issue notice to the party named as the heir.

"He contended that he was not the right person, but the court, having received his protest decided that he-was the right person, and so proceeded with the execution. In so doing the court was exercising its jurisdiction. It made a sad mistake, it is true; but a court has jurisdiction to decide wrong as well as right"

(Lord House at page 347). These observations do not apply to the case now before us. The procedure laid down by the Code was not followed in this case. This is not therefore, the case of afterroneous decision, ruling, or exercise of discretion of the judge in a matter in which the court had jurisdiction, I think that the interest of Ayyasami was not represented law or in fact in the proceedings in execution after 6-4-1904 and the sale of the property, so far as his interest was sought to be affected by it, was therefore without jurisdiction and null and void ( Vide Khairajmal v. Daim ( 1904) I.L.R. 32 Cal. 296, 315, (P.C.) 2 which is a case of the decree being itself void). But there is no substance in the distinction that, when the decree was duly obtained against the deceased judgment debtor, the sale in execution after a decree without the their of the judgment-debtor properly on the record is not a nullity. This is clear from the case of Rashid Un-nissa v. Mohamad Ismail Khan (1909) I.L.R. 31 All. 572. Vide also Paidanna v. Lakshmi Narasimha ( 1914) I.L.R. 38 Mad. 1076 where it was held that execution proceedings obtained against a minor legal representative of a deceased judgment-debtor without his being represented by a proper guardian ad litem are void. A fortiori, a said in execution carried out against a dead person (or no person) is void and should be regarded a nullity and has not got to be set aside. It seems to me that the' decisions of Indian High Courts prior to 31 All. 572 (i.e.)(a) those in favour of the appellant such as Sheo Prasad v. Hira Lal ( 1889) I.L.R. 12 All. 440 Abdur Aba v. Dhondu Bai ( 1894) I.L.R. 19 Bom. 276 which while seeming to disapprove of 12 All. 440 are based finally on grounds not quite clear and (b) decisions like Emmaswami v. Bagirathi ( 1883) I.L.R. 6 Mad. 180 and. Krishnayya v. Unnissa Begum ( 1891) I.L.R. 15 Mad. 399 (where Shephard, J. said that it was not a case of mere irregularity but the learned Judges in Letters Patent Appeal described the defect as a material irregularity causing substantial injury which are rightly commented on by Mr, Rarjgaehari the learned vakil for the appellants, as inconclusive, are not of much value. But the other Madras decisions cited before us viz., Grovez v. Administrator General ( 1898) I.L.R. 22 Mad. 119 and Rayarappa Napibiar v. Malihandi Akath Mayan ( 1914) 26 M.L.J. 267 are dicidedly against the appellants. The language of the learned Judges in these cases is clear and unambiguous. I agree with the remarks of Boddam J. in 22 Mad. at p. 125 where he disagrees with 12 All. 440 (F.B.) It is said that Article 12 of Limitation Act was not considered in those cases as the matter arose in execution and not in a separate suit. On the view taken by their Lordships in those cases viz., that the sale was a nullity, no such question could arise; I may add that, if the sale in pursuance of an order for sale against the judgment-debtor (when living) is not a nullity but only voidable, as contended by the appellants any attempt to set aside the sale must be made in execution and not by a regular suit and no occasion for the application of Article 12 can arise. The cases in Narayana Kothan v. Kaliyanasundaram ( 1895) I.L.R. 19 Mad. 219 which Boddam, J. described in 22 Mad. 119 as supporting his view Muhammad Raft v. Muhammad Askari (1916) 37 I.C. 433 Seshagiri Row v. Hanumantha Row (1915) I.L.R. 39 Mad. 1031 and C.M.S.A. No. 37 of 1920 and Lala Ganpat Lal v. Bindbaasni Prasad Narayan Singh ( 1920) 39 M.L.J. 108 are not cases of the judgment-debtor's death and need not be considered. As to the cases decided in Calcutta, in Net Lall Sahoo v. Shaikh Kareem Buse ( 1896) I.L.R. 23 cal. 686 the heirs were parties to the proceedings in execution. In Bepin Behari Bara v. Sasi Bhusan Batta (1914) 18 C.W.N. 766 the sale was a sale under the Public Demands Recovery Act of the Bengal Code and may perhaps be distinguished on that grdaind. But it must be admitted that the manner in which the Madras cases were deferred to at p. 768 supports the appellants. So far as the reference to 22 Mad. 119'is concerned, I would observe with great deference to the eminent Judges that decided 18 C. W. N. 766 that, though Boddam, J. concludes by saying that the sale should be set aside, there is no doubt as to what the learned Judges meant (Vide pp. 123-125) viz., that the sale should be declared vide. In Jagadish Bhattachargee v. Bama Sundari Dasyi (1919) 23 C.W.N. 608 (case of a money deqreej Richardson, J. merely follows 12 All. 440, 19 Bom. 276, 23 Cal. 686 and Shamsul Huda, J. Was content to follow 18 C.W.N. 766. The decision in Mussamati Rukini v. Jodha Singh ( 1913) 19 I.C. 120 might be also described as incoactusive but for the manner in which Malkarjan v. Narhari ( 1900) I.L.R. 25 Bom. 337 was distinguished by the, learned Judges In my opinion, Malkarjun v. Narahari might have been distinguished on the ground that it was not, whereas the case before their Lordships, was a case of nullity.

7. The distinction made between an application for attachment and an application for sale in Sita Ramayya v. Gopala-krishnamma I.L.R. 43 Mad. 57 in the course of applying the decision in Rahunath Das v. Sundara Dos Khatri I.L.R. 42 Cal. 72 (P.C.) (a decision on Order 21, Rule 22,) cannot help the appellants. The application there was made against judgment debtor himself and no question arose as to the effect of Section 50 Civil Procedure Code which would certainly cover even all applications in execution after attachment. I therefore hold that the execution of the decree in O. S. No. 11 of 98 not being carried out so as to affect Aiyyasami's interest, his mortgage is not extinguished.

8. The only other question is whether the payment of Rs., 250 on 15-2-04 is true. The evidence is all one way and I accept the finding of the Court below. The suit is therefore not barred.

9. In the result, the appeal fails and is dismissed with costs.

10. There is a memorandum of objections by the plaintiff. He objects to those portions of the judgment and decree which direct that the plaintiff should execute an indemnity bond for Rs. 3775, to be answerable to the reversioners of Ayyasami on the death of the 8th defendant. The reversioners are not parties to the suit. I do not think that the directions for the benefit of the absentee reversioners is justified. I agree with the plaintiff's contention and allow his cross objections with costs and direct that Clause (3) of the decree should be deleted.

11. Time for redemption is extended to 28-2-1922.