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Section 313 of the Civil Procedure Code
Section 13(4) of the Regulation

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Structured Summary of the Opinion

Factual and Procedural Background

These four appeals arise from four applications to set aside a sale in execution of a decree: three applications under Section 311 of the Civil Procedure Code and one under Section 313. The underlying facts (as narrated in the opinion) are:

Roy Dhanpat Singh Bahadur was zamindar of Parganah Hawali; his nephew Babu Chhatrapat Singh held a patni (Saifgunj).
Dhanpat sold his zamindari interest in June 1893, then sued Chhatrapat for arrears of patni rent and obtained a decree on 10 July 1896.
On 12 July 1896 Dhanpat assigned his properties (including the decree) to trustees for payment of debts; he died in September 1896. Trustees applied for execution; Maharaj Bahadur (heir-at-law) was added as a party on objection.
Chhatrapat did not pay the rent; Bhagwanbati put the patni up for sale under Regulation VIII of 1819. A.H. Forbes (executor of his father A.J. Forbes, a dur-patnidar under Chhatrapat) deposited arrears under Section 13(4) of the Regulation and obtained possession as mortgagee.
Chhatrapat's interest was sold in execution (1 September 1902) purchased by Surendra Narain Singh. Trustees took out a second execution in 1904; objections were rejected and sale fixed for 10 November 1904.
A.H. Forbes and Surendra attempted to avert sale by various suits; Forbes brought a suit (9 July 1906) for declaration that the decree under execution was not a rent decree and injunction; the first court decreed in his favor but the High Court reversed (8 April 1908) holding the decree was a rent decree. Leave to appeal to the Privy Council was granted (30 June 1908).
The trustees applied for sale (9 May 1908); the property was sold on 6 July 1908, purchased by A.H. Forbes in his personal capacity for Rs. 61,200, while an appeal to the Privy Council was pending. Forbes later obtained a Privy Council judgment (referred to in the opinion as delivered 4 March 1914) which ultimately held that the plaintiff's suit should have been decreed.
Four applications to set aside the sale followed: Surendra (Section 311), Chhatrapat (Section 311), A.H. Forbes as executor (Section 311), and A.H. Forbes in his personal capacity (Section 313). The District Judge of Purnea allowed all four applications. The decree-holders (appellants in these appeals) challenged that decision.

Legal Issues Presented

Whether the sale in execution should be set aside because notice required under the execution process was not properly served (including whether the later execution was a continuation of a prior application thereby obviating fresh notice).
Whether the doctrine of lis pendens applies to the sale made pending the appeal to the Privy Council and, if so, whether that doctrine prevents the appellants from relying on the sale to defeat the plaintiff's eventual successful appeal.
Whether a sale can only be set aside for non-service of notice if the applicant shows substantial injury from the irregularity.
Whether the existence at the time of sale of a then-subsisting High Court decree (holding the decree was a rent decree) prevents invalidation of the sale after a subsequent reversal by the Privy Council.
Whether Mr. A.H. Forbes, having acted in different capacities (executor and personal purchaser), may take apparently inconsistent positions under Sections 311 and 313 of the Civil Procedure Code.

Arguments of the Parties

Appellants' (Decree-holders') Arguments

The later application for execution was a continuation of the previous application and therefore no fresh notice was necessary.
Chhatrapat had no subsisting interest in the property at the time and so no notice was necessary to be served on him.
Chhatrapat actually appeared in the case, so lack of notice cannot invalidate the sale.
Notice was effectively given because it was practically served on Chhatrapat's am-mukhtar Sokilal, who must have known of it.
Surendra (a purchaser pendente lite) was not entitled to notice.
Even if notice was not given, the sale could not be set aside unless substantial injury to the applicant was shown.
The appellants further argued that the then-subsisting High Court decree (held the July 1896 decree to be a rent decree) meant the sale was valid and could not be invalidated by a later reversal by the Privy Council.
It was also contended that Forbes should not be permitted to take inconsistent positions—claiming under Section 311 that the judgment-debtor had some interest while under Section 313 claiming the judgment-debtor had no interest.

Respondent(s)' Arguments (for whom the lower Court ruled)

The respondents relied principally on the doctrine of lis pendens: a pending suit restrains litigating parties from creating rights over the property in dispute that would prejudice the opposite party; the sale took place while an appeal to the Privy Council was pending and the Privy Council ultimately held that the plaintiff's suit should have been decreed, so the sale cannot prejudice the plaintiff or make that judgment nugatory.
The respondent contended that, because the doctrine of lis pendens applied, it was not necessary for the court to decide the separate notice-related grounds urged by the appellants.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Bellamy v. Sabine (1857) 1 De G. & J. 566; 26 L.J. Ch. 797; 6 W.R. 1; 44 E.R. 842	Cited as foundational authority for the doctrine of lis pendens (that pending litigation prevents parties from creating rights over disputed property that prejudice the opposite party).	The court invoked this line of authority to conclude that the facts before it attracted the doctrine of lis pendens and that the appellants' sale pending appeal could not prejudice the plaintiff's rights.
Wigram v. Buckley (1894) 3 Ch. 483	Cited alongside Bellamy as establishing the principle of lis pendens.	Used to support application of lis pendens to the sale in execution pending appeal.
She Radhamadhub Holdar v. Manohar Mukerji 15 C. 756 (15 I.A. 97)	Indian authority cited for the proposition that lis pendens applies to sales in invitum.	Relied on to show that lis pendens operates to invalidate or protect rights with respect to sales during pending litigation.
Moti Lal v. Karrabuldin 25 C. 179 (24 I.A. 170)	Indian authority cited in support of lis pendens applying to sales in invitum.	Invoked as part of the domestic precedent base for applying lis pendens to the facts.
Dinonath Ghose v. Shama Bibi 28 C. 23	Indian precedent cited as part of the established doctrine that lis pendens can govern sales.	Used to reinforce the court's conclusion that lis pendens applied to the sale made pending the Privy Council appeal.
Shiv Lal Bhagwan v. Shambhu Prasad Parvati Shankar 29 B. 435 (7 Bom. L.R. 585)	Relied on by the appellants to argue that lis pendens did not apply in the present circumstances.	The court distinguished this Bombay case on its facts, holding it did not assist the appellants because the decree executed here was different from the decree then under appeal.
Malkarjun v. Narhari 25 B. 337 (27 I.A. 216)	Cited as authority for the proposition that non-service of notice may be a mere irregularity not warranting setting aside a sale unless substantial injury is shown.	The court treated this decision as distinguishable and (by reference to later authority) not determinative against setting aside the sale for non-service in the present case.
Levenia Ashton v. Madhabmoni Dasi 5 Ind. Cas. 390 (14 C.W.N. 560)	Listed among recent cases said to support the requirement of showing substantial injury before setting aside a sale for non-service.	Not adopted as controlling; the court observed these cases but relied on subsequent Privy Council authority to hold non-service vitiated the sale.
Rasaraj Kunai v. Prosonna Kumar Roy 15 Ind. Cas. 506 (40 C. 45)	Also cited as a recent case in the line suggesting substantial injury must be shown.	Similarly noted but not treated as decisive in light of later Privy Council approval of contrary reasoning.
Raghunath Das v. Sundar Das (Privy Council Appeal No. 20 of 1912; decided 18 May 1914) (24 Ind. Cas. 304)	Privy Council decision approving the view that non-service of notice under Section 248 vitiates the sale and distinguishing cases where notice had in fact been served on a person held to be the legal representative.	The court relied on this Privy Council authority (and its approval of Gopal Chunder Chatterjee) to uphold the lower court's holding that non-service under Section 248 vitiated the sale.
Gopal Chunder Chatterjee v. Gunamoni Dasi 20 C. 370	Domestic authority approved by the Privy Council in Raghunath Das.	The court cited Privy Council approval of this decision in support of holding that non-service invalidated the sale.

Court's Reasoning and Analysis

The court's analysis proceeded in two main strands: (A) acceptance of the lis pendens argument as a complete defence; and (B) a subsidiary examination of the notice and irregularity contentions (even though the court found the lis pendens point sufficient).

A. Lis pendens

The respondents argued that the sale, which took place on 6 July 1908, was made while an appeal to the Privy Council was pending (leave to appeal having been granted on 30 June 1908), and that the Privy Council ultimately held that the plaintiff's suit ought to have been decreed.
The court observed that the doctrine of lis pendens prevents litigating parties from transferring rights over disputed property so as to prejudice the opposite party. It cited leading English and Indian authorities to support this doctrine.
Applying those authorities to the facts, the court concluded that the facts were sufficient to attract the doctrine of lis pendens and that the appellants' act in bringing about the sale could not prejudice the plaintiff or make the Privy Council's judgment nugatory.

B. Notice, non-service and substantial injury (subsidiary analysis)

The court noted that, even if it were necessary to consider the notice issues, the application for execution filed on 9 May 1908 could not be regarded as merely a continuation of a previous application without showing it was within one year of the prior order; accordingly a fresh notice was necessary.
Although Chhatrapat had no subsisting interest, the appellants had chosen to treat him as the judgment-debtor and were therefore bound to serve him with notice. The record did not show that he appeared in the proceeding nor that Sokilal was authorised to receive notice on his behalf.
Surendra (the pendente lite purchaser) had had his title suit dismissed by the High Court and the appellants were not treating him as the legal representative of Chhatrapat; therefore the appellants were not bound to issue notice on him.
The appellants argued non-service was a mere irregularity and that sale should not be set aside absent proof of substantial injury. The court reviewed recent cases on that point (including Malkarjun and cases said to follow it) but regarded the Privy Council decision in Raghunath Das as authoritative: that decision approved the view that non-service under Section 248 vitiates the sale (and distinguished cases where notice had in fact been served on someone later held to be the legal representative).
On that basis the District Judge was held to be correct in concluding that non-service of the notice under Section 248 vitiated the sale.

C. Forbes' capacity and consistency of positions

The court addressed the contention that Forbes could not take inconsistent positions. It found that Forbes had purchased in his personal capacity after unsuccessfully seeking to protect the interests he held as executor; the court held he should not be debarred from applying under Section 313 in his personal capacity.
The court observed that Forbes had relied on the decree of the High Court at the time of purchase; that decree was later set aside by the Privy Council, and Forbes should not be a loser because the appellants insisted upon a sale which was ultimately interdicted by the Privy Council's decree.

Holding and Implications

Holding: The appeals by the decree-holders were dismissed. The lower court's allowance of the four applications to set aside the sale was upheld. The appeals were dismissed with costs of five gold mohurs in each case.

Implications:

Direct effect on the parties: The decision upholds the setting aside of the execution sale (as ordered by the lower court) and confirms that the sale made while the litigation was pending and while an appeal to the Privy Council lay could not prejudice the plaintiff's rights under the doctrine of lis pendens. It also confirms that non-service of the statutory notice (under Section 248) vitiated the sale in the circumstances of this case.
For Mr. A.H. Forbes: The court expressly allowed him to proceed under Section 313 in his personal capacity notwithstanding his prior actions as executor; he was not disbarred from that relief.
No broader new precedent was expressly claimed to be established by this opinion beyond application and reliance on existing English and Indian authorities and Privy Council decisions; the court framed its conclusions by applying those existing authorities to the facts before it.

Note: This summary is based exclusively on the content of the provided opinion and does not add or infer information beyond what the opinion itself states.

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Maharaj Bahadur Singh And Ors. v. Surendra Narain Singh And Ors., Chatrapat Singh And Ors. And Mr. A.H. Forbes And Ors.

1. These four appeals arise out of four applications to set aside a sale in execution of a decree, three under Section 311 and one under Section 313 of the Civil Procedure Code.

2. A short narrative of the facts, which are a little complicated, may help a clear conception of the question raised in these appeals.

3. Roy Dhanpat Singh Bahadur was the zemindar of perganah Hawali in the District of Purneah and his nephew, Babu Chhatrapat Singh, held a patni of a property named Saifgunj in this perganah. Dhanpat sold his zemindar I interest in this perganah to one Bhagwanbati Chowdhrani in June 1893, and then brought a suit against Chhatrapat for the arrears of the patni rent that had accrued due prior to the said sale and ultimately obtained a decree on the 10th of July 1896. On the 12th of July 1896 Dhanpat assigned all his properties including this decree to certain trustees for the payment of his debts and died in September following. The trustees applied for the execution of the decree and on the objection of Chhatrapat, Maharaj Bahadur, the heir-at-law of Dhanpat, was added as a party to the execution.

4. In the mean time Chhatrapat did not pay the patni rent and Bhagwanbati put up the patni to sale under Regulation VIII of 1819. Mr. A.H. Forbes, who was the executor to the estate of his deceased father, A.J. Forbes, who was a dur-patnidar under Chhatrapat, deposited the arears under Section 13(4) of the Regulation for saving the durpatni interest from the effect of the sale and obtained possession as mortgagee under the provisions of that Section.

5. Chhatrapat's interest in the patni was then sold in execution of a money decree and purchased by Surendra Narain Singh on the 1st of September 1902.

6. The trustees took out a second execution in 1904 and Surendra Narain objected on the ground that the patni could not be sold as the decree was a money decree. This objection was rejected and the patni was fixed for sale on the 10th of November 1904.

7. Mr. A.H. Forbes tried to avert the sale but was unsuccessful, and Surendra's suit for the same purpose was dismissed up to the High Court. On the 9th of July 1906, A. H. Forbes instituted a regular suit for a declaration that the decree under execution was not a rent decree and for a perpetual injunction upon the decree-holders not to execute the same against the patni mehal. This suit was decreed by the first Court, but dismissed by the High Court which held that the decree was a rent, decree and could be executed as such. This was on the 8th of April 1908. Forbes applied for leave to appeal to the Privy Council and the trustees applied for the sale of the patni mehal on the 9th May 1908, and they impleaded Chhatrapat alone as judgment-debtor. The leave to appeal to the Privy Council was granted on the 30th June 1908. The property was sold on the 6th July 1908 and was purchased by Mr. A.H. Forbes in his personal capacity for Rs. 61,200.

8. For setting aside this sale one application under Section 311 was made by Surendra Narain and his case was numbered as 665 of 1908 and has given rise to Appeal No. 138 of 1911 in this Court, and another application under Section 311 was made by Chhatrapat; his case was numbered as No. 16 of 1909 and has given rise to Appeal No. 158. A third application under Section 311 was made by Mr. A.H. Forbes as executor to the estate of his deceased father. This was case No. 17 of 1909, in the Court below and has given rise to Appeal No. 160.

9. Mr. A.H. Forbes in his personal capacity as the auction-purchaser of the mehal made an application under Section 313 of the Civil Procedure Code on the ground that the judgment-debtor had no saleable interest at the time of his purchase. His case was numbered as 18 of 1909 and has given rise to Appeal No. 159 of 1911 in this Court. These four cases were tried together by the District Judge of Purnea who has allowed all of them.

10. These appeals are by the decree-holders.

11. It has been contended on their behalf that the Court below has erred in setting aside the sale on the ground of non-service of notice on Chhatrapat because

(a) the application for execution was a continuation of the previous application and therefore, no fresh, notice was necessary;

(b) Chhtrapat had no subsisting interest in the property and no notice was necessary;

(d) notice was practically served on his am-mukhtar Sokilal and he must have known of it:

(e) Surendra was not entitled to notice as he purchased pendente lite.

11. Secondly, it was argued that notice or no notice the sale could not be set aside unless the applicant could make out substantial injury.

12. Thirdly, that at the time of the sale there was a, subsisting decree of the High Court declaring that the decree was a decree for rent for which the tenure was liable; the subsequent reversal of the decree by the Privy Council cannot invalidate the sale.

13. Fourthly, that Forbes could not be allowed to take two inconsistent positions; when he applied under Section 311 he did so on the basis of the judgment-debtor having some interest, he could not at the same time say under Section 313 that the judgment-debtor had no interest.

14. The learned Vakil for the respondents contends that it is not necessary to go into the question of notice and other questions raised by the appellants, as the doctrine of lis pendens furnishes a complete defence of the order made by the lower Court. This argument is based on the judgment passed by the Privy Council in the appeal of Mr. Forbes on the 4th of March 1914 more than three years after the judgment under appeal in this case. The sale took place on the 6th July 1908 pending the appeal to the Privy Council. The doctrine of lis pendens rests on the principle that the law does not allow litigant parties to give to others pending the litigation rights over the property in dispute so as to prejudice the opposite party: Bellamy v. Sabine (1857) 1 De G. & J. 566 : 26 L.J. Ch. 797 : 3 Jur. (N.S.) 943 : 6 W.R. 1 : 44 E.R. 842 : 118 R.R. 228; Wigram v. Buckley (1894) 3 Ch. 483 : 63 L.J. Ch. 689 7 R. 469 : 71 L.T. 287 : 43 W.R. 147 and it is now settled that this doctrine applies to sales in invitum. She Radhamadhub Holdar v. Manohar Mukerji 15 C. 756 : 15 I.A. 97 : 12 Ind. Jur. 297 : 5 Sar. P.C.J. 211; Moti Lal v. Karrabuldin 25 C. 179 : 24 I.A. 170 : 1 C.W.N. 639; Dinonath Ghose v. Shama Bibi 28 C. 23 : 4 C.W.N. 740. The property in dispute was the patni in which the plaintiff had substantial rights; the object of the suit was to restrain the appellants from selling this property in execution of their decree of July 1896 and the appellants brought about the sale pending the appeal to the Privy Council, which ultimately held that the plaintiff's suit ought to have been decreed. We think that the facts are sufficient to attract the application of the doctrine of lis pendens and the act of the appellants in bringing about the sale cannot prejudice the plaintiff and make the judgment of the Privy Council nugatory.

15. The learned Vakil for the appellants contends that the principle of lis pendens does not apply, as the Us pendens is the very suit in which the decree in pursuance of which the sale took place was passed; and he relies on the case of Shiv Lal Bhagwan v. Shambhu Prasad Parvati Shankar 29 B. 435 : 7 Bom. L.R. 585. The decree, however, in execution of which the sale took place was not the decree under appeal to the Privy Council. The sale took place, under the decree of July 1896, and the lis pendens was the suit of July 1906. The decree of the High Court, which was under appeal to the Privy Council, only held that the decree of July 1896 was a rent decree and was not the decree under which the sale took place. The Bombay case, therefore, does not help the appellants and no other case is relied on in their favour.

16. In this view of the case it is not necessary to decide the grounds urged by the learned Vakil for the appellants. As the case, however, may not terminate in this Court, we may shortly express our views on the said grounds. Supposing that the application for execution made on the 9th May 1908 was one for the continuation or restoration of the previous application, it is not shown that it was within one year of the last order passed on that application; the issue of a notice was, therefore, necessary.

17. It is true that Babu Chhatrapat Singh had no subsisting interest but, the appellants chose to treat him alone as the Judgment-debtor and wore, therefore, bound o serve him with notice. It has not been shown that he appeared in this case and there is nothing to show that Soki Lal was authorised to receive any notice for him. As regards Surendra his title suit had been dismissed by the High Court and the appellants were not willing to treat him as the legal representative of Chhatrapat and did not want to execute the decree against him; they were not, therefore, bound to issue notice upon him. It has been contended, however, that the non-service of notice under Section 248 was a mere irregularity and as no substantial injury is found to have occurred there was no reason for setting aside the sale. Some recent cases based on the case of Malkarjun v. Narhari 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 10 M.L.J. 368 : 2 Bom. L.R. 927 seem to support that contention. See Levenia Ashton v. Madhabmoni Dasi 5 Ind. Cas. 390 : 14 C.W.N. 560 : 11 C.L.J. 489; Rasaraj Kunai v. Prosonna Kumar Roy 15 Ind. Cas. 506 : 40 C. 45. The matter, however, was before the Privy Council in the case of Raghunath Das v. Sundar Das 24 Ind. Cas. 304 :18 C.W.N. 1058 :1 L.W. 567 : 27 M.L.J. 150 : 16 M.L.T. 353 : (1914) M.W.N. 147 : 16 Bom. L.R. 814 : 20 C.L.J. 555 : 13 A.L.J. 154 : 42 C. 72 (Privy Council Appeal No. 20 of 1912 decided on the 18th of May 1914) and their Lordships approved of the decision of this Court in Gopal Chunder Chatterjee v. Gunamoni Dasi 20 C. 370 and distinguished the case of Malkarjun v. Narhari 25 B. 337 : 27 I.A. 216 : 5 C.W.N. 10 : 10 M.L.J. 368 : 2 Bom. L.R. 927 as one in which notice had been actually served on a person whom the Court then held to be the legal representative. The learned District Judge was, therefore, right in holding that the non service of the notice under Section 248 vitiated the sale.

18. The previous consideration disposes of the second and the third grounds.

19. As regards the fourth ground the auction-purchase was made by Mr. Forbes in his personal capacity and we do not think that he should be debarred from applying under Section 313 of the Civil Procedure Code in this capacity, He had tried his best to prevent the sale in order to protect the interests that he had as the executor of his father and when all his efforts failed he made the purchase in reliance on the decree of the High Court. That decree has now been set aside and he should not be a loser because the appellants insisted upon a sale which has been interdicted by the decree of the Privy Council

20. In this view of the case the appeals are all dismissed with costs five gold mohurs in each case.

Maharaj Bahadur Sing... v. Surendra Narain Sing...