K.C Chunder, J.:— This is an appeal against an appellate order of the Subordinate Judge of Bankura, reversing that of the Mansif, Third Court, of the same place. The decree-holder appellant had obtained a rent decree against several persons. He started Rent Execution case No. 1488 of 1943 on 16th September 1943. On 25th October 1943, judgment-debtor No. 1 died, and this fact was intimated to the Court when a registered letter addressed to the judgment-debtor No. 1 was returned with the remark that the addressee was dead. This was on 4th December 1943. No step was taken under Section 50 of the CPC, to apply to the Court which passed the decree to execute the same against the legal representative of the deceased judgment-debtor No. 1. It further appears that at the time when the rent execution case was started, the judgment-debtor no. 3 was already dead. The Munsif has not accepted the story of her death prior to the execution application, but the Subordinate Judge on a proper appreciation of the evidence has come to the finding that the judgment-debtor No. 3 had died about July 1941. We fully agree with the finding of the Subordinate Judge and accept the same as correct. The heirs of the deceased judgment-debtor No. 3 were never brought on the record, and no application was also made at any time to execute the decree against the legal representatives. The sale was held on 15th December 1943. Then on 27th May 1945, the legal representatives of judgment-debtor No. 1 and judgment-debtor No. 3 filed an application for setting aside the Sale. The Munsif dismissed the application, while the Subordinate Judge on appeal, reversed that decision holding that the sale was void. As regards the judgment-debtor No. 3, the decree was sought from its inception, to be executes against a dead person; there was no proper application, therefore for execution, because not Court can take action against a dead person. The Subordinate Judge, therefore, rightly held that the shares in the property of the legal representatives of judgment-debtor no. 3 were not affected by the sale, and the sale was void and inoperative as far as their shares were concerned.
2. We now come to the legal representative of judgment-debtor No. 1. Mr. Chatterjee appearing on behalf of the appellants has contended that in view of the amendment of O. 21, Rr. 22 and 90 by the Calcutta High Court, the sale will not be void, but if substantial injury can be shown, the sale could be set aside. Order 21, R. 22 sub-r. (1) as it stood originally, ran as follows:
“Where an application for execution is made…(b) against the legal representative of a party to the decree…. the Court executing the decree shall issue a notice to the person against whom execution is applied for requiring him to show cause, on a date to be fixed, why the decree should not be executed against him.”
3. The following sub-rule (3) was added to O. 21, R. 22 by the Calcutta High Court:
“(3) Omission to issue a notice in a case where notice is required under sub-r. (1), or to record reasons in a case where notice is dispensed with under snb-r. (2) shall not affect the jurisdiction of the Court in executing the decree.”
4. It is to be noticed that the amendment does not do away with the necessity of making an application under Section 50 of the CPC, to execute the decree against the legal representative of a deceased judgment-debtor. All that the amendment does is that where such an application has bean-made, the Court will not lose jurisdiction simply because the notice under O. 21, R. 22 has not been issued against the legal representative. Section 50 of the CPC, it may be pointed out cannot be amended by any High Court, and it is imperative under this section if the decree-holder wishes to proceed against the properties of a deceased judgment-debtor to apply to the Court which passed the decree to execute the same against the legal representative of the deceased judgment-debtor. Order 21, R. 90 was amended by addition of the words, “or on the ground of failure to issue notice to him as required by R. 22 of this order.” It further provides that failure to issue such a notice will not entitle the party affected to have the sale set aside unless there has been substantial injury. Here also, it is to be noted that the amendment by the Calcutta High Court does not affect the question of bringing on record of the execution case the legal representative of a deceased judgment-debtor under Section 50 of the CPC. All that it does is to regulate further the consequences of not issuing a notice under O. 21, R. 22 on the legal representative of a deceased judgment-debtor where an application to bring him on record has already been made. Neither of these amendments, viz., of O. 21, R. 22 or O. 21, R. 90 is any authority for any proposition that the sale held in a case wheres a person is not before the Court at all will affect his interest.
5. It will appear that in the case of Tarangini Debi v. Raj Krishna Mondal, 32 C.W.N 418 : (115 I.C 520) an opinion was expressed that this will not make the sale absolutely void, but the sale will be voidable. That decision purported to follow a decision of the Madras High Court in Doraiswami v. Chidambaram Pillai, 47 Mad. 63 : (A.I.R (11) 1924 Mad. 130) but it may be mentioned that the Full Bench of the Madras High Court in Kanchamalai Pathar v. Ry. Shahaji Rajah Sahib, 59 Mad. 461 : (A.I.R (23) 1936 Mad. 205 F.B) overruled the decision in Doraiswami v. Chidambaram Pillai, 47 Mad. 63 : (A.I.R (11) 1924 Mad. 130). Further a Divisional Bench of this Court in Faizaddi Taluqdar v. Razia Begum, 46 C.W.N 631 : (A.I.R (29) 1942 Cal. 436) definitely did not accept the opinion expressed in Tarangini Dibi v. Raj Krishna Mondal, 32 C.W.N 418 : 115 I.C 520) case above referred to. We may say in the words of Cotton L.J in In re Shephard Atkins v. Shephard, (1889) 43 Ch. D. 131 (137) : (58 L.J Ch. 33)
“It is quite new to me to hear it alleged that there is anything is the rules to enable the Court to make an order against a person who is not a party to the action. It is against all principles to proceed against him until he has been brought before the Court or all proper steps to bring him before the Court have been taken in-effectually.”
6. In the present case, this is not a question of non-compliance merely with the provisions of O. 21, R. 22, but it is a question of a sale being held as far as the legal representatives of judgment-debtors Nos. 1 and 3 are concerned when they were not at all before the Court. If an application had been made to execute the decree against them, and then there had been subsequent failure to observe the proper procedure of issue of notice Mr. Chatterjee's arguments would have been of force.
7. In the present case, they were not before the Court in accordance with the provisions of Section 50 of the CPC. The Subordinate Judge rightly held that their shares in the property were not affected by the sale, and as far as they were concerned, the sale was void and inoperative. The order of the Subordinate Judge being right is upheld, and this appeal is dismissed with costs.
Blank, J.:— I agree.
R.G.D
8. Appeal dismissed.