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Case Number

Appeal No. 239 of 1932 and Civil Rule No. 707-M of 1932

Judges

Mitter
M.C Ghose, JJ.

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Smart Summary

Judicial Opinion Summary — Mitter, J. (with M.C. Ghose, J. concurring)

Factual and Procedural Background

This appeal challenges two orders contained in a single judgment of the Subordinate Judge of Nadia dated 29 March 1932: (1) an order allowing amendment of a rent decree, and (2) an order refusing personal execution of the decree against the respondent (Abdul Jalil Mia) as sought by the decree-holders, the Midnapur Zamindary Co. Ltd. The factual and procedural history, as stated in the opinion, is as follows.

The Midnapur Zamindary Co. Ltd. (plaintiff, now appellant) brought a rent suit in 1923 (Suit No. 3 of 1923) against four persons: Abdul Jalil Mia (respondent), Esmail Hossein Mia (a minor represented by guardian ad litem Ainuddin at an earlier stage), and two darpatnidars. The Subordinate Judge originally dismissed the plaintiffs' suit; that dismissal was affirmed on appeal to the District Judge. The plaintiff company then appealed to the High Court. During the pendency of that appeal Ainuddin (guardian of Esmail) died and no new guardian was appointed for Esmail. On 10 February 1928 the High Court allowed the appeal, remanding the matter for determination of the extent of dispossession and for passing a decree in plaintiffs' favour allowing proportionate abatement for dispossessed area.

On remand, Esmail was not represented by a guardian ad litem, yet a decree was passed in favour of the plaintiffs for approximately Rs. 4,092 against all four defendants, including Esmail. Execution of that decree led to a sale of the darpatni on 9 July 1931; the Zamindary Company purchased it for Rs. 35,000. Because the original rent claim was roughly Rs. 5,000, this produced a surplus of about Rs. 30,000 in favour of the judgment-debtors.

Separately, during the remand proceedings the plaintiffs had instituted two further rent suits concerning the same darpatni (Rent Suit No. 7 of 1926 and Rent Suit No. 11 of 1930). Those were tried jointly and decreed on 31 March 1931. From the surplus of the earlier sale, the entire claim in Rent Suit No. 11 was satisfied and a substantial portion of the decree in Rent Suit No. 7 was satisfied. The plaintiffs then executed the balance of Rent Suit No. 7 against the respondent, attaching his personal property.

A particular clause in the judgment of Rent Suit No. 7 — directing that the tenure be held first in execution in accordance with a stipulation in the darpatni patta — had been omitted from the formal decree. An application was later made to amend the decree to conform with the judgment; that amendment was allowed. The respondent's principal objection to personal execution was that (i) the sale of Esmail's three-annas share was void because Esmail had not been properly represented when the sale took place, (ii) therefore the darpatni had not been sold in its entirety as required by the amended decree, and (iii) consequently no personal execution against a co-judgment-debtor could issue until the tenure as a whole was sold. The Subordinate Judge accepted that objection and directed that the tenure should be sold first; this part of the order is what the plaintiffs have appealed against.

Legal Issues Presented

Whether the decree in Rent Suit No. 7 of 1926 could properly be amended at a late stage (including during execution) to bring it into conformity with the judgment, and whether the executing Court had jurisdiction to allow such an amendment.
Whether the sale of Esmail's (Ismail's) share — effected in execution of the decree in Suit No. 3 of 1923 when he was not properly represented — was a nullity, and relatedly whether the sale could be treated as valid by reason of any of the following:
1. That the sale was not a nullity in law despite non-representation;
2. That Esmail was represented in the execution proceedings by his uncle (guardian) and thus the sale was ratified;
3. That Esmail, upon attaining majority, by permitting application of the surplus sale proceeds in satisfaction of later rent decrees, ratified the earlier sale and is estopped from challenging it.

Arguments of the Parties

Appellant (Midnapur Zamindary Co. Ltd.)

Contended that the decree in Suit No. 7 of 1926 should not have been allowed to be amended at a late stage after partial satisfaction and that the executing Court had no jurisdiction to amend the decree.
Contended, in three branches, that (A) the sale of Esmail's share was not a nullity, (B) even if void, the fact that Esmail was represented in the execution proceedings by his uncle Jahiruddin estops him from challenging the sale, and (C) even if representation by the uncle did not validate the sale, Esmail on attaining majority permitted the surplus proceeds to be applied for his benefit and thus ratified the sale, estopping him from contesting it.

Respondent (Abdul Jalil Mia / judgment-debtor)

Main objection (accepted by the Subordinate Judge): because the sale of Esmail's three-annas share was void (Esmail being unrepresented), the darpatni had not been sold in its entirety as required by the amended decree in Suit No. 7; therefore personal execution against Abdul Jalil Mia could not proceed until the tenure as a whole was sold.
Relied on the absence of valid sale of a co-judgment-debtor's share to bar personal execution until the tenure's complete sale.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Eatton v. Harris, 1895 AC 547	That a decree may be amended to bring it into conformity with the judgment even after lapse of years; the only limitation is where third parties have acquired rights under the erroneous decree without knowledge of the circumstances making it erroneous.	The court relied on this authority to hold that the amendment of the decree in Suit No. 7 was properly allowed because no third-party rights had intervened at the date of amendment.
Kishen Ghose v. Asman. Marshall 647	Proposition that a Court has no jurisdiction to sell property of persons who were not parties to the proceedings or not properly represented; such decrees and sales are nullities and may be disregarded without separate proceedings to set them aside.	The court applied this principle to conclude that the sale of Esmail's share (where Esmail was not represented) was void and of no effect in law.
Khirajmal v. Dain. 1905 32 Cal 296 (observations of Lord Davey cited)	Support for the principle that the Court cannot sell property of persons not properly represented; used as confirmatory authority.	The court referenced these observations to reinforce the conclusion that a sale made in proceedings where the person was not properly represented is void.
Mr. Freeman, Law of Void Judicial Sales (S. 50, p. 170)	Doctrine concerning ratification of void judicial sales: while a general rule says confirmation cannot validate a void estate, judicial sales are an exception and can be ratified either directly or by conduct (e.g., claiming and receiving surplus proceeds with full knowledge).	The court reproduced and relied on Freeman's exposition to hold that Esmail's conduct after attaining majority — permitting surplus proceeds to be applied to satisfy later rent liabilities to his benefit — amounted to ratification that precluded him from denying validity of the earlier sale.

Court's Reasoning and Analysis

The court addressed the issues in the following sequence and with the following legal analysis.

Amendment of Decree: The court observed that it is well settled that a decree may be amended to conform to the judgment even after many years. The only restraint on this power arises when third parties, without knowledge of the error, have acquired rights under the erroneous decree; in such circumstances amendment may be inexpedient or inequitable. Applying that principle (citing Eatton v. Harris), the court found no intervening third-party rights at the date of amendment and therefore upheld the amendment. The court further noted that there was no bar to amendment in the course of execution where the executing Court and the decree-passing Court are the same; in this case they were the same Court and the appellant had delayed the passing of orders on the petition for amendment until after the merits of the objection case had been heard.
Validity of Sale of Esmail's Share: The court recognized an established principle (citing Kishen Ghose v. Asman and Khirajmal v. Dain) that a Court lacks jurisdiction to sell property of persons who were not parties to proceedings or not properly represented; sales and decrees so made are a nullity and may be disregarded. Applying that rule, the court held that the sale of Esmail's share, effected when Esmail had no guardian ad litem after remand, was void and of no legal effect.
Effect of Guardian's Participation in Execution: The court rejected the contention that acts of Esmail's guardian during his minority (participation in execution proceedings by his uncle Jahiruddin) could validate a sale that was otherwise void. The court reasoned that no act by a guardian during the ward's minority can render a void sale valid.
Ratification by Esmail After Attaining Majority: The court found that Esmail, having attained majority, allowed the surplus proceeds of the contested sale to be applied in satisfaction of a later rent decree (Suit No. 11 of 1930), thereby extinguishing his liability for that period. The court treated this conduct — permitting application of surplus to his benefit — as a ratification of the earlier sale. Relying on Freeman's treatment of ratification in the context of void judicial sales, the court concluded that Esmail's conduct estopped him from denying the validity of the sale. The court also noted that Esmail had never applied to set aside the sale.
Effect as Against Other Judgment-Debtors: Because Esmail's conduct validated the sale as against him, his previously-asserted non-sale of the three-annas share could no longer be invoked by the present respondent (Abdul Jalil Mia) to prevent personal execution. The court therefore concluded that the Subordinate Judge erred in directing that the tenure be sold first and in sustaining the respondent's objection to personal execution.

Holding and Implications

Core Ruling: The appeal is allowed insofar as it was directed against the order upholding the respondent Abdul Jalil Mia's objection to personal execution; the Subordinate Judge's order directing that the tenure must be sold first is set aside, and the amendment of the decree was properly allowed.

Direct consequences for the parties:

The amendment of the decree in Rent Suit No. 7 of 1926 to bring it into conformity with the judgment is upheld.
Although the sale of Esmail's share was originally void because he was not properly represented, Esmail's later conduct upon attaining majority (permitting application of the surplus proceeds to his benefit) amounted to ratification; thus, as against the plaintiffs and the present respondent, the sale is treated as valid.
The plaintiffs (Midnapur Zamindary Co. Ltd.) are entitled to proceed against the respondent Abdul Jalil Mia for realization of the balance due under the decree in Rent Suit No. 7 of 1926.
The appeal is allowed with costs here and in the Court below; the hearing fee in this Court is assessed at two gold mohurs. Because of the judgment in the appeal, no order was necessary in Civil Rule No. 707-M of 1932.

Broader precedent: The court applied and reaffirmed existing principles concerning (a) the power to amend decrees to conform to judgments (subject to protection of third-party rights), (b) the nullity of sales affecting persons not properly represented, and (c) the possibility of ratifying a void judicial sale by subsequent conduct (claiming/accepting surplus or permitting application for one’s benefit). The opinion does not purport to establish a new legal principle but applies and reconciles established authorities to the facts before it.

Order accordingly. M.C. Ghose, J. concurred.

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Midnapore Zamindary Co. Ltd. Decree-Holders v. Abdul Zalil Mia Judgment-Debtor .

Mitter, J.:— This appeal is directed against two orders embodied in one judgment of the Subordinate Judge of Nadia which is dated 29th March 1932. The first order which is attacked is an order directing amendment of a rent decree and the second order challenged by this appeal is one refusing personal execution of the decree against the respondent as asked for by the decree-holders appellants.

2. The questions which fall for determination in this appeal depend on facts which are either admitted or have been proved in this case. They may be briefly stated: It appears that the Midnapur Zamindary Co. Ltd., now appellants, brought a rent suit in the year 1923 against four persons, namely, Abdul Jalil Mia, now respondent, Esmail Hossein Mia, a minor represented by his guardian ad litem Ainuddin and two other persons who were the darpatnidars under them. The rent suit was for arrears for the period 1327 to Pous kist of 1329 B.S The defence to the suit was that the plaintiffs, the Zamindary Co. Ltd., had dispossessed the defendants from a portion of the darpatni and there should be entire suspension of rent.

3. This defence was given effect to by the Subordinate Judge who tried the suit in the first instance and plaintiff's suit was dismissed. This decree of dismissal was affirmed by the District Judge on appeal. There was a further appeal to the High Court by the plaintiff company and during the pendency of the second appeal Ainuddin, the guardian of Ismail, died but no new guardian was appointed in his place. On 10th February 1928 the High Court decreed the appeal and sent back the case for determination of the extent of dispossession by the plaintiffs and for passing a decree in plaintiffs' favour after allowing proportionate abatement of rent to the defendants on account of the dispossessed area. On remand Esmail was not represented by a guardian and a decree was passed in favour of the plaintiffs for Rs. 4,092 odd not only against the three defendants who were properly represented but also against Esmail Mia, who was not represented by a guardian ad litem. In execution of this decree the sale of the darpatni took place on 9th July 1931 and it was purchased by the plaintiffs company for Rs. 35,000. As the claim for rent was for Rs. 5,000 there was a surplus of Rs. 30,000 in favour of the judgment-debtors, the four defendants in the suit.

4. During the pendency of this suit before the Subordinate Judge after remand by the High Court, two other suits for rent of the same darpatni for a subsequent period had been instituted by the plaintiffs' company. They were Bent Suits Nos. 7 of 1926 and 11 of 1930. These suits were jointly tried and were decreed on 31st March 1931. From the surplus sale proceeds of the sale in execution of the rent decree in Suit No. 3 of 1923 the entire claim of the Rent Suit No. 11 was satisfied and a substantial portion of the decree in Rent Suit No. 7 of 1926, was satisfied. The plaintiffs company have executed the decree for the balance in Rent Suit No. 7 of 1926 and have at attached the personal properties of the respondent Abdul Jalil Mia who is one of the judgment-debtors in the suit. In order to understand the objection of the judgment-debtor Abdul Jalil Mia one fact has to be borne in mind and that is this: in the judgment of Rent Suit No. 7 it was directed that the tenure should be hold first in execution of the decree in accordance with a stipulation in the darpatni patta (Ex. 2) to that effect, but this clause was omitted from the decree and an application was made for the amendment of the decree by bringing it into conformity with the Judgment, and the amendment of the decree has been made. The order allowing amendment, as has been already stated, has been attacked in this appeal and we will return to this hereafter. The main objection of the respondent judgment-debtor to this personal execution is that as according to the decree as amended the tenure must be sold in the first instance, and as the sale of three annas share of Esmail Mia is absolutely void as the sale was in pursuance of a decree in a suit in which he was not properly represented, three annas share of the tenure still remains unsold, and according to the decree no personal execution can issue against one judgment-debtor till the darpatni tenure in its entirety is sold. This objection has prevailed with the learned Subordinate Judge below and he has allowed the objection and has directed that the tenure should be sold first and if any balance be left, then it could be executed personally against the judgment-debtor.

5. The Midnapur Zamindary Co. has accordingly preferred this appeal and the learned counsel raises two contentions before us: (1) that the decree in Suit No. 7 of 1926 should not have been allowed to be amended at the late stage after it has been partly satisfied and that execution Court has no jurisdiction to amend the decree. (2) The second contention may be subdivided under three heads: (A) that the sale of Esmail's share is not a nullity and (B) even if the sale be regarded as void, the fact that Esmail was represented in the proceedings in execution and his guardian took part in the proceedings relating to the settlement of value of the property to be advertised for sale estops him from challenging the validity of the sale and (C) even if that is not so, the fact that Esmail after attaining majority allowed the surplus sale proceeds of the sale which is impeached as void to be applied to the satisfaction of the decree in Bent Suit No. 11 and partly of Suit No. 7 of 1926 estopped him from challenging the sale. The first contention of the appellant has really no substance, for it is now well settled that a decree could be brought into conformity with the judgment even after the lapse of years and that the only limitation is that the Court may deem it inexpedient or inequitable to exercise its powers where third parties have acquired rights under the erroneous decree without a knowledge of the circumstances which would tend to show that the decree was erroneous: see Eatton v. Harris . 1895 AC 547. In the present case no rights of third parties had intervened at the date of the amendment of the decree. We are consequently of opinion that amendment has been rightly allowed. There is no substance also in the contention that the Court could not amend the decree in the course of execution. It appears that the executing Court and the Court which passed the decree are one and the same and it was at the instance of the appellant that orders on the petition for amendment were not passed till after the merits of the objection case was heard.

6. Taking now the first branch of the appellants' second contention that the sale of Ismail's share is not a nullity it appears to me that this contention can not be sustained, for, it is now well established on the highest authority that the Court has no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside. If authority be desired for these elementary propositions, it may be found in the judgment of Sir Barnes Peacock in Kishen Ghose v. Asman . Marshall 647. see the observations of Lord Davey in Khirajmal v. Dain . 1905 32 Cal 296. In the present case Ismail was not represented in Rent Suit No. 7 after remand. Consequently the sale of his share is void and of no effect in law. The second branch of the second contention is that even if the sale be regarded as void as Ismail was represented in the execution proceeding which led to the sale by his uncle Jahiruddin (see Ex. B) it must be taken that the sale of Ismail's share was ratified. This contention does not seem to me to be right, for Ismail was a minor at the, date of the execution proceedings and no act done by his guardian during his minority can render a void sale valid.

7. The third branch of the second contention, namely, that there was ratification of the sale by Ismail after he had attained majority seeing that after attaining age he allowed the surplus sale proceeds to be taken in execution of the decree for rent for the subsequent period seems to me to be well founded and must prevail. It has not been disputed before us that Ismail had attained the age of majority when the rent decree in Suit No. 11 of 1930 was executed and the said proceeds were applied, to his use or for his benefit as it extinguished his liability for rent for the period covered by Suit No. 11 of 1930 and this circumstance must be regarded as ratification by him of the sale in execution of the rent decree in the suit of 1923. In allowing the surplus sale proceeds to be taken for satisfying his liability in the rent decree No. 11 he has ratified the sale by a course of conduct which stops him from denying the validity of the sale and indeed it is a significant circumstance that Ismail has never applied to set aside the sale. The law with regard to ratification of void sale by the acts of the parties in interest has been well put by Mr. Freeman in his Law of Void Judicial Sales (S. 50, p. 170) and may be usefully reproduced here:

“As a general rule a confirmation or ratification cannot strengthen a void estate. ‘For confirmation may make a voidable or defeasible estate good, but cannot operate on an estate void in law.’ If this rule be one of universal application, then there can be no necessity for considering the question of ratification in connexion with void judicial sales. But this is one of those rules which are so limited by exceptions, that the circumstances to which it may be applied are scarcely more numerous than those from which its application must be withheld. There can now be scarcely any doubt that void judicial sales are within the exceptions, and are unaffected by the rule. These sales may be ratified either directly or by a course of conduct which estops the party from denying their validity. Thus if the defendant in execution after a void sale of his property has been made, claims and received the surplus proceeds of the sale with a full knowledge of his rights, his act must thereafter be treated as an irrecoverable confirmation of the sale.”

8. Ismail having ratified the sale it is not open to him again to challenge the validity thereof and far less is it open to the present respondent to impeach the sale. There can be no question that as against him the sale of Ismail's share must be regarded as valid. The result is that the Subordinate Judge's order regarding the amendment of decree must stand and that his order directing that the tenure should be sold first must be set aside. The plaintiffs decree-holders will be entitled to proceed against the respondent judgment-debtor for the realization of the balance due under the decree in Suit No. 7 of 1926. This appeal, insofar as it is directed, against the order giving effect to the objection of the respondent Abdul Zalil Mia to personal execution, is allowed with costs here and in the Court below. We assess the hearing fee in this Court at two gold mohurs. In view of our judgment in the appeal no order is necessary in the Rule (Civil Rule No. 707-M of 1932.)

M.C Ghose, J.:— I agree.

K.S

9. Order accordingly.

Midnapore Zamindary Co. Ltd. Decree-Holders v. Abdul Zalil Mia Judgment-Debtor .

Judicial Opinion Summary — Mitter, J. (with M.C. Ghose, J. concurring)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

Appellant (Midnapur Zamindary Co. Ltd.)

Respondent (Abdul Jalil Mia / judgment-debtor)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

Midnapore Zamindary Co. Ltd. Decree-Holders v. Abdul Zalil Mia Judgment-Debtor .

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