Sir John Edge, C.J:— In execution of a decree, which, so far as this case is concerned, was one for money against Bhim Sen and Dal Chand, a bagh of 16 biswas in mauza Lashkarpur was put up for sale by auction on the 3rd September, 1880, and was at that sale purchased by one Bhabuti. That sale was confirmed on the 19th November, 1880, and Bhabuti obtained possession of the bagh. He also obtained a sale-certificate. By a sale-deed dated the 20th July, 1881, Bhabuti conveyed the bagh to Pandit Hira Lal, the plaintiff in this suit. In July, 1884, the defendant without any authority from the plaintiff entered upon the bagh, and cut down and removed some of the trees. In respect of that alleged wrongful entry and the alleged wrongful cutting down and removal of the trees by the defendant, the plaintiff brought the suit out of which this second appeal has arisen.’

The defendant raised several defences, one of which only we need consider, the findings of facts having disposed of the others adversely to him.

The question which we have to consider arises on the defendant's plea that Dal Chand had died before the sale, and that the defendant as the representative of Dal Chand was not made a party to the proceedings in execution of the decree under which the bagh was sold.

It has been found as a fact by the lower appellate Court that Dal Chand died before the sale, but that beyond that fact there is [442] no reliable evidence to show when he died. It is admitted that the defendant was not made a party to the proceedings in execution.

On behalf of the defendant, who is the appellant before us, Mr. Banerji contended that the omission to make the defendant as the representative of Dal Chand a party to the proceedings in execution rendered the sale, so far as the interest which was of Dal Chand in his lifetime, a nullity, and that it was for the plaintiff to prove his title and establish a good and valid sale to Bhabuti, his vendor, by showing that Dal Chand was alive not only at the dates of the sale and confirmation of sale, but at the date of the decree. Mr. Banerji in the course of his argument relied on the cases of Ramasami Ayyangar v. Bagirathi Ammal, Asmutunnissa Begum v. Asaruf Ali, Jasoda v. Mathura Das, Ram Chand v. Pitam Mal(4), Ganga Prasad v. Jag Lal Rai(5), Imam-un-nissa Bibi v. Liakat Husain(6), Dulari v. Mohan Singh(7), and Bakhshi Nandkishore v. Malak Chand(8), Mr. Kashi Prasad for the plaintiff relied, upon the cases of Stowell v. Ajudhia Nath(9) and Gulab Das v. Lakshman Narhar(10).

The question as to the onus of proving the date of Dal Chand's death may be easily disposed of. At the date of the alleged trespass in July 1884 the plaintiff was in possession, and between that date and 1880 he or his vendor Bhabuti had been in possession of the bagh. That possessory title was a sufficiently good one to enable the plaintiff to maintain his suit until the defendant proved a better title. Further, the certificate of sale afforded prima, facie evidence as against the defendant, claiming as the representative of Dal Chand, of a good title in Bhabuti from whom the plaintiff derived title. Again, the defendant had not pleaded that Dal Chand had died before the decree. If it had been open to the defendant on the pleadings in my judgment it was not to prove that Dal Chand had died before the date of the decree, it was for him to prove it, and thus to rebut the inference that the decree was properly [443] and lawfully made. In my opinion, if the question had been open to the defendant, the onus of proving that Dal Chand had died before the date of the decree was upon him.

The other question, namely, what effect, if any, had the omission to make the defendant as the representative of Dal Chand a party to the execution proceedings, is a more difficult one, and that I now propose to consider. We must take it, as the contrary has not been pleaded or proved, that the attachment took place and the order of sale was made in the lifetime of Dal Chand, and that they were duly made.

Many of the authorities which have been cited appear to me to have little or no bearing upon the point which we have to consider here. The case of Ram Chanel v. Pitam Mal is merely an authority showing that a regularly perfected attachment is an essential preliminary to sales in execution of decrees for money. In the case of Imam-un-nissa Bibi v. Liakat Hussian the judgment-creditor in execution of a decree for money and without making the representative of the deceased judgment-debtor a party, took out, after the death of the judgment-debtor, attachment of certain, immoveable property which had been of the deceased judgment-debtor and was then in the possession of his representative. The cases of Bakhshi Nand Kishore v. Malak Chand and Ganga Prasad v. Jag Lal Rai turned on the construction of ss. 290 and 311 of the Code of Civil Procedure, whilst that of Jasoda v. Mathura Das turned on the construction of ss. 287, 290 and 311 of that Code.

In Asmut-nn-nissa Begam v. Ashruff Ali the question was whether a person who claimed to be a purchaser from a judgment-debtor prior to an attachment was entitled to come in under s. 311 of the Code of Civil Procedure and object to the sale of the judgment-debtor's property.

Of the cases more directly in point, that of Stowell v. Ajudhia Nath decided that a sale in execution of a decree is not rendered [444] invalid by reason of the judgment-debtor having died before the sale and no representative of his having been made a party to the execution proceedings.

In Gulab Das v. Lalcshman Narhar, the Bombay High Court held that Act X of 1877 did not provide that applications for execution should, like suits, abate by the death of the judgment-creditor. In Dulari v. Mohan Singh the majority of the Court held that a sale was not invalid by reason of its having taken place after the death of the decree-holder and without his representative having been brought into the execution proceedings. The only authority to which we have been referred or of which. I am aware for holding that a sale in execution of a decree, after attachment in the lifetime of the judgment-debtor, could not legally he had after the death of the judgment-debtor, unless his representative was brought into the execution proceedings, is that of Ramasami Ayyangar v. Bagirahi Ammal. In that case the learned Judges of the Madras High Court did not give their reasons for their opinion, but I infer that they thought, but why I do not know, that s. 234 of the Code of Civil Procedure appliable in that case. S. 234 of the Code of Civil Procedure applies, in my opinion 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. That section contemplates that property which was of the judgment-debtor in his lifetime may not only have come to the hands of his legal representative, but may before the making of the application under the section have been duly disposed of by the representative, and indicates that in respect of property so duly disposed of the legal representative would not be liable. That section also provides a means by which the liability of the representative may be ascertained.

How, having regard to the provisions of s. 276 of the Code of Civil Procedure, the representative could, as against the judgment-creditor, duly dispose of property which was under attachment at [445] the suit of the judgment-creditor, I fail to see. Nor do I see what necessity there could be for providing in s. 234 a means by which to ascertain the liability of the representative in respect of property under attachment at the suit of judgment-creditor.

I can find nothing in the Code of Civil Procedure to warrant the suggestion that an attachment would abate on the death of the judgment-debtor, or that his death would render it necessary for the judgment-creditor to take any steps to keep in force an attachment of property made in the life time of the judgment-debtor.

After a careful examination of the sections in the Code of Civil Procedure relating to attachment, I am of opinion that property under attachment must, be considered as in the custody of the law.

West, J., in delivering the judgment of the Court in Gulab Das v. Lakashman Narhar, at p. 222, pointed out, I think correctly, the distinction which exists between pending suits and pending proceedings in execution. In the one case the rights of the plaintiff against the defendant have to be ascertained. In the other case and before execution of the decree is had, these rights have been already ascertained, and it only remains to enforce the decreed rights by execution. If the judgment-debtor's property is under attachment the execution of the decree can proceed against such property, but if at the time of the death of the judgment-debtor his property is not under attachment, the judgment-creditor must, except in the case of a decree under s. 89 of the Transfer of Property Act, proceed under s. 234, if he desires to execute his decree against property which was of the judgment-debtor in his lifetime and which came into the hands of his legal representative at his death, or if he desires to make the legal representative personally liable by showing that property which was of the judgment-debtor came to the hands of the legal representative and was disposed of by him otherwise than “duly” within the meaning of that section. Under s. 275 any person interested in property under attachment may, in the case contemplated by that section, apply for the withdrawal of the attachment.

[446] S. 280 provides for the releasing of property under attachment on the allowance of a claim or objection. S. 284 empowers a Court to order a sale of property under attachment. I do not find in the Code of Civil Procedure any provision requiring notice to be given personally to a judgment-debtor or his legal representative of a sale of property under attachment.

S. 311 enables “any person whose immoveable property has been sold under” Chapter XIX to apply in the cases therein specified to set aside the sale. It is difficult to see how the legal representative, as such of a deceased judgment-debtor could be damnified by a sale of property attached and ordered to be sold in the lifetime of the judgment-debtor, except in one of the events provided for by s. 311. I can find no section in the Code which provides that the legal representative, any more than a stranger whose property is sold, is 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.

The defendant here has shown no case on the merits: his defence so far as it is not met by the findings of fact, is a purely technical defence at the best, and in my opinion he is not entitled to succeed on that defence.

To hold otherwise would be to impose upon the purchaser at an execution-sale under a decree, the necessity of ascertaining before he paid the purchase-money whether the judgment-debtor was alive at the actual moment when the sale took place, or the risk of losing the purchase-money which he paid and the property in respect of the purchase of which that money was paid, and would in any event render it difficult for such a purchaser to maintain his title under his sale-certificate if subsequently challenged by the legal representative of the deceased judgment-debtor, the exact date of whose death it might be impossible for the purchaser to ascertain or prove.

I may say further that I am of opinion that there would have been no necessity for any attachment in this case if the sale, as we at first assumed it was, had been under a decree under s. 89 of the Transfer of Property Act directing the sale of the property in ques [447] tion in enforcement of a mortgage specifically affecting it. I may say that this is the view which was expressed by my brother Straight in Stowell v. Ajudhia Nath.

When under a decree under s. 89 of the Transfer of Property Act, property of a person other than the judgment-debtor is sold, such other person has his remedy by suit.

I would dismiss this appeal with costs.

Straight, J.:— I concur.

Brodhurst, J.:— I concur.

Tyrrell, J.:— I concur.

Mahmood, J.:— I understand the facts of this case to be the following:—

On the 13th June 1876, Bhim Sen and Dal Chand executed a hypothecation bond in favour of one Mr. C.W Stowell, who sued them for the money due on the bond and obtained a decree against both of them jointly on the 3rd December 1879. The decree was partly a decree enforcing hypothecatory lien against certain properties mentioned therein, and it was partly a simple money-decree against the judgment-debtors personally, and it has been expressly conceded by Mr. Kashi Prasad on behalf of the plaintiff-respondent that the decree awards no enforcement of hypothecation against the property now in suit, namely, bagh No. 911.

For the purposes of this case therefore that decree must be dealt with as a simple money-decree.

The decree was put into execution on the 6th May 1880, and it is admitted that in the course of execution proceedings the property now in suit was attached and notified for sale by auction, which took place on the 3rd September 1880, at which one Bhabuti Singh purchased the rights and interests of the judgment-debtors in the property now in suit.

The Court executing the decree confirmed the sale on the 19th November 1880, and granted a sale-certificate to the aforesaid Bhabuti Singh on the 19th March 1881.

[448] On the 20th July 1881, the present plaintiff-respondent, Hira Lal, purchased by private sale from Bhabuti Singh the rights and interests which the latter had acquired under the auction-sale of 3rd September 1880, to which the sale-certificate of 19th March 1881 related.

The present litgation began in a suit instituted by the plaintiff respondent on the 20th July 1885, in which he alleged that the property now in suit belonged exclusively to Bhim Sen and Dal Chand, the judgment-debtors of 3rd December 1879; that their rights were duly purchased by the aforesaid Bhabuti Singh in the auctionsale of 3rd September 1880, to which the sale-certificate of 19th March 1881 related; that those rights were duly purchased from him by the plaintiff under the sale-deed of 20th July 1881; that under such purchase the plaintiff acquired proprietary possession of the property in suit; that in the month of July 1884 the defendants Bhim Sen and Sheo Prasad forcibly arrested him from the bagh and felled certain trees of the bagh of the value of Rs. 124, and appropriated them.

Upon these allegations the plaintiff prayed for a decree awarding him possession of the property in suit and recovery of Rs. 124 damages as the value of the trees above-mentioned.

It is clear from the plaint that the suit was in the nature of an action for ejectment and recovery of money as damages in connection with the property in suit, and there is no question that such a suit is maintainable in our Civil Courts.

The suit was resisted by the defendant Bhim Sen mainly upon the ground that the plaintiff had purchased only the rights and interests of him, Bhim Sen; that the other judgment-debtor Dal Chand had died before the auction-sale of the 3rd September 1880, and his heirs were not represented in the execution proceedings; and the defendant further pleaded that he had been unnecessarily impleaded in the suit as he had not felled or appropriated any of the trees to which the suit related. The other defendant, Sheo Prasad, appellant before us, pleaded that the plaintiff's purchase was limited to the rights and interests of Bhim Sen and Dal Chand, [449] and could not entitle him to claim any further rights; that three years before the suit the trees in question had been felled and appropriated by the plaintiff's vendor Bhabuti Singh; that at the time when the auction-sale of 3rd September 1880 took place the judgment-debtor Dal Chand had already died and his heirs were not represented in the execution proceedings; that therefore the auction-purchase by the plaintiff's vendor Bhabuti Singh was null and void, and could confer no title upon the plaintiff to maintain such an action.

There were also other pleas in deferfce, of which the only one which I need refer to was a plea to the effect that the bagh in dispute was ancestral property belonging to a common ancestor, Bija Ram, and that the shares of Bhim Sen and Dal Chand were limited to two-fifths of the property, and the plaintiff therefore had no title to claim the whole of it.

Upon this state of the pleadings, the Court of first instance framed no less than seven issues, and, in a judgment which I cannot regard as adequate or satisfactory, decreed the whole suit on the 22nd September, 1885.

From that decree only the defendant Sheo Prasad appealed to the lower appellate Court on the 9th November 1885, and the appeal was dismissed by that Court or the 15th February 1886, in which the learned Judge of that Court held, with reference to the evidence before him, that the bagh in question was exclusively owned by Dal Chand and Bhim Sen, who were for years separate from their brothers and nephews; and that the plaintiff's title therefore extended to the whole property in suit under the sale-certificate of 19th March 1881, notwithstanding the circumstance that at the time of the auction-sale of 3rd September 1880, to which that certificate related, Dal Chand was not alive and his heirs were not represented in the execution proceedings. In holding this view the learned Judge relied upon the ruling of this Court in Stowell v. Ajualhia Nath, interpreting that ruling to lay down that the antecedent of a judgment-debtor does not render the sale of his [450] property void. From the decree of the lower appellate Court this second appeal has been preferred, and it came on for hearing before my brother Brodhurst and myself, and we by our order of the 23rd May 1887, remanded the case to the lower appellate Court for ascertaining whether Dal Chand died before or during the pendency of the execution proceedings which resulted in the sale of the 3rd September 1880, and the confirmation thereof on the 19th November 1880, also whether during such proceedings any person was acting as the legal representative of the deceased Dal Chand.

Upon remand the learned Judge of the lower appellate Court has found (to use his own words) that “Dal Chand died some time before the sale, but whether that death took place before or after the execution proceedings were taken against him, the Court has no materials before it to found its opinion upon.”

With this finding the case came on before my brother Brodhurst and myself again, and by our order of the 10th January 1888, and in view of the rulings which were then cited to us, we directed that the case be laid before the learned Chief Justice, with a recommendation that the same may be heard by the whole Court, and it is in pursuance of his order of the 16th January 1888, that the case has been heard by a Bench consisting of the whole Court.

Now, upon this state of things, Mr. Dwarka Nath Banerji, on behalf of the defendant-appellant, Sheo Prasad, has argued, and I think soundiy, that, inasmuch as the action is in ejectment and for damages for an alleged trespass, the plaintiff-respondent was bound to show a good title to maintain such an action; and that since the solitary title alleged by him rested upon the auction-sale of the 3rd September 1880, which was confirmed on the 19th November 1880, and to which the sale-certificate of 19th March 1881 related, that certificate represented what the learned counsel called a “parliamentary title,” and would for its validity depend upon proof that the statutory requirements for conveyance of such a title had been duly observed before the title-deed, namely, the sale-certificate of 19th March 1881, had been granted to the plaintiff. I think the learned counsel was also right when he contended [451] that the validity of that title-deed depended upon the validity of the auction-sale of the 3rd September 1880, and that such a question was to be decided with reference to the rules contained in the Code of Civil Procedure and with especial reference to auction-sales in execution of simple money-decrees.

This argument has been met by Mr. Kashi Prasad on behalf of the plaintiff-respondent upon grounds other than those which would repudiate the principles upon which Mr. Banerji's argument for the defendant-appellant proceeded. The learned pleader has argued that although the rules of the Code of Civil Procedure would govern the validity of his client's title under the auction-sale of 3rd September 1880, yet those rules in themselves would justify our holding, as the lower appellate Court has held, that the plaintiff had a good title to maintain the action. Now, what really has to be considered in the case are two important questions of law:—:

First,—Whether, when a sale in execution of a simple money decree takes place of property which belonged to a judgment-debtor of such a simple money-decree, at a time when he was not alive and his legal representatives were not brought upon the record of the execution proceedings resulting in such sale, the sale is ipso facto null and void so as to convey no title to the purchaser at such sale.

Secondly,—Whether, when such a sale has actually taken place and the purchaser at such sale seeks to acquire the benefits of his purchase in an action such as this, he can be defeated upon the mere plea that, in consequence of the judgment-debtor whose rights he purchased being dead at the time of the sale, he has purchased nothing because the sale is null and void.

Before I proceed to consider the first of these questions, I think it is necessary to say that, upon the findings of the lower appellate Court on remand, and in view of the evidential presumption of law amply recognized by our own law in ss. 107 and 108 of the Evidence Act (I of 1872), as to the continuity of human life, I may take it, in the absence of evidence to the, contrary, that on the 16th [452] May 1880, when the attachment of theproperty took place and on the 22nd July 1880, when the proclamation of sale was issued, the judgment-debtor Dal Chand was still alive. And before I go any further I wish to say that this finding relieves me of having to consider how farl am still prepared to abide by the Full Bench ruling of this Court in Mahadeo Dubey v. Bhola Nath Dichit to which I myself was a party and in which it was held that a regularly perfected attachment is an essential preliminary to sales in execution of simple money-decrees, and that where there has been no such attachment any sale that may have taken place is not simply voidable but de facto void. In this case, I take it that the deceased Dal Chand was alive when the attachment was duly made, and when in consequence of such attachment the property was proclaimed for sale. All that I take to have been found by the lower appellate Court is that he was dead at the time when the auction-sale of 3rd September 1880 took place, and to this circumstance alone I shall refer in dealing with the first point, as indeed also in dealing with the next.

Now, the only ruling of importance which has been cited on behalf of the defendant-appellant on this part of the case is Ramasami Ayyangar v. Bagirathi Ammal, where Innes and Kindersley, JJ., concurred in holding that where a judgment-debtor died after his land had been attached, and the creditor brought the land to sale without making the representatives of the deceased parties to the proceedings, the sale was illegal and must be set aside, apparently as the report suggests, without any investigation as to whether such sale had caused any “substantial injury” within the meaning of s. 311 of the Code of Civil Procedure. As a counterpoise to this ruling, a judgment of the Bombay High Court in Gulab Das v. Lakshman Narhar has been cited to maintain the proposition that “the Code of Civil Procedure does not provide that applications for execution shall, like suits, abate by the death of the judgment-creditor;” but to neither of these extreme views can I find it possible to give my consent.

[453] What I have to consider is whether the mere circumstance of the judgment-debtor Dal Chand being dead on the 3rd September 1880, when his rights were sold to Bhabuti Singh, from whom the plaintiff derives his title, renders the sale null and void for purposes of conveying, title.

To this question my answer is in the negative, and the best way in which I can explain my views is to pass on to the second point as enunciated by me in this judgment. I hold, as I have long held, that the provisions of the Civil Procedure Code as to the array of parties are applicable, not only to original suits in the Court of first instance, but also applicable mutatis mutandis to appeals and miscellaneous proceedings in the civil Courts, such as s. 647 of the Code contemplates, including, of course, proceedings in execution of a decree. But it is one thing to say that those rules as to the array of parties in execution proceedings are applicable to them, and it is a totally different thing to say that where those rules have not been duly observed, and in execution of a decree an actual attachment has duly taken place, and proclamation of sale duly issued in the lifetime of the judgment-debtor (as in this case) the auction-sale is null and void, because at the date of the sale the auction-purchaser purchased the rights of one who at that date was not alive, and whose representatives had not been brought upon the record as representing the deceased.

In Lekraj Roy v. Becharam Misser the High Court of Calcutta laid down the rule that execution cannot issue against the estate of a deceased person if there is no one on the record as representing the estate and I think the rule so laid down was not only sound under the old Code which governed that case, but it was also sound under the present Code of Civil Procedure; because the rule of law, notwithstanding recent legislation, still stands firm that audi alteram partem, and no judicial process requiring the hearing of both parties could therefore be issued without the chance being given to the opposite party to say what he has to say against any proposed judicial process when (and this is important) the law [454] requires that be should have such a chance. There are of course numerous provisions in the Code of Civil Procedure which contemplate the existence of the judgment-debtor, enabling him to raise objections in the course of execution proceedings or to take measures to satisfy the decree in order to save his property from being brought to sale. As illustrations of this I may refer to ss. 257A, 258 and even to s. 291 of the Code, which all contemplate the existence of a living judgment-debtor during execution proceedings. Similarly, there are many provisions in the Code which contemplate that, when a judgment-debtor is dead, execution proceedings should be taken against his legal representative. Illustrations of this class of provisions are to be found in ss. 234, 248(b), 249, and I think there was much cogency in what Mr. Banerji urged in his argument that clause (c) of s. 244 distinctly contemplates that the legal representative of a deceased judgment-debtor should be made a party to execution proceedings, and that the last paragraph of that section is in keeping with the argument, that when execution proceedings terminate in a sale and a certificate of sale is granted under s. 316, the title, not only of the original judgment-debtor, but also of his legal representatives passes to the purchaser, which could not be the case unless such legal representative was made a party to the execution proceedings. So far I accept Mr. Banerji's argument and I go even further with him when he contended that objections to a sale with the object of setting it aside, such as those contemplated by ss. 311 and 312, are available to the legal representative of a deceased judgment-debtor as much as to the original judgment-debtor himself; because when a sale-certificate is granted under s. 316 after confirmation of the sale, the law in that section prescribes that “so far as regards the parties to the suit and persons claiming through or under them, the title to the property sold shall vest in the purchaser from the date of such certificate and not before.” But I do not think that the views which I have thus expressed overcome Mr. Banerji's real difficulty in supporting the case of his client Sheo Prasad, defendant-appellant. His position in the litigation has already been described by me, as also the main outlines of the defence which he set up, showing as it does that the [455] position taken up by him was not that of being the legal representative of the deceased judgment-debtor Dal Chand, but rested mainly upon the assertion of a paramount or independent title, and also upon the technical plea as to defect in the plaintiff's title, by reason of Dal Chand being dead when the auction-sale in execution of decree took place on the 3rd September 1880.

Now, so far as the plea as to paramount or independent title is concerned, the finding of fact by the lower appellate Court is conclusive in second appeal, that no such title existed in Sheo Prasad at the date of the sale, for the judgment-debtors, Bhim Sen and Dal Chand, were exclusive owners of the property then sold. This being so, all that is left to Mr. Banerji is the technical defect in the plaintiff's title which the defendant appellant seeks to find, by reason of what has been addressed on his behalf under the provisions of the Civil Procedure Code, as to the title conveyed under s. 316 by a sale-certificate.

In the case of Ramchhaibar Misr v. Bechu Bhagat, I dwelt at some length upon the various divisions of the Civil Procedure Code as to execution of decrees, with especial reference to the scope of ss. 311 and 312 in their connection with s. 244 of the Code. I said—“I take it, that when execution of a decree is prayed for by a decree-holder, all the questions which may arise between the decree-holder, and the judgment-debtor relating to the execution, &c, of the decree, may be disposed of under s. 244. There may be questions relating to the validity of attachment, the mode of execution, &c, but when one and all of these matters do terminate in sale, I maintain that all that is comprehended within the definition of execution comes to an end there, because the purchaser comes as a third party, and is not bound by s. 244 as to proceedings antecedent to sale. The ‘execution,’ so far as s. 241 is concerned, is over, and the questions that may arise after the sale are no more, strictly speaking, questions relating to the execution, discharge or satisfaction of the decree within the meaning of cl. (c) of s. 244. As soon as there is a sale, the execution of the decree, so far as the [456] decree-holder is concerned, is over, and the question whether the purchaser has purchased anything by the sale is not a question as to the execution of the decree-holder's decree.”

I had again to consider a cognate question in Ram Chand v. Pitam Mal, where, in deference to the Full Bench ruling of this Court in Mahadeo Dubey v. Bhola Nath Dichit, I held, with my brother Brod-hurst's concurrence, that absence of a valid attachment in execution of a simple money decree was a matter which might be complained of under s. 311 of the Code for purposes of setting aside a sale, without proof of substantial injury, since the Full Bench judgment declared such sales to be absolutely void.

In this case however, as I have already said, no question as to the absence of a valid attachment at the time of the sale arises, and the question is limited to what the defendant-appellant might have done subsequent to the sale of 3rd September 1880, if he had been either impleaded as the legal representative of the deceased judgment-debtor Dal Chand, or had taken up the position of a paramount and independent title, as he has done in his defence in this case.

Now, as I understand Mr. Banerji's argument, I took his contention to be that the defendant-appellant, having never been brought upon the record as the legal representative of the deceased Dal Chand, could raise no objections under s. 311 to set aside the sale of 3rd September 1880, and that, as claiming under title paramount to or independent of the deceased Dal Chand, he could not avail himself of the provisions of that section. For the latter part of this contention the learned counsel relied upon a recent Full Bench ruling of the Calcutta High Court in Asmutunnisa Begum v. Ashruf Ali, where the learned Judges concurred, by overruling a Division Bench ruling of their Court in Abdul Huq Mazoomdar v. Mohini Mohun Shaha, in holding “that a person claiming by title paramount to the judgment-debtor is not within the meaning of the words ‘any person’ in the section, inasmuch as his title to the pro-[457] perty is not affected by the sale, whether it were regular or irregular, and therefore cannot apply to the Court to set aside the sale.”

In adopting this rule the learned Judges purport to have approved and followed a judgment of Westropp, C.J, in Krishnarav Venkatesh v. Vasudev Anant; but I respectfully think that the principle of that ruling, though it interpreted the old Code of 1859, was opposed to the rule laid down by the Full Bench of the Calcutta High Court, the effect of which I understand to be that the words “any person” as they occur in s. 311 do not include persons who may seek to set aside a sale under a title independent of the judgment-debtor, even if they can show that they have sustained substantial injury by the sale within the meaning of that section. With all respect due to the Full Bench ruling of the Calcutta High Court, I find myself unable to accept the conclusion at which their Bench arrived; because I think it is seldom safe, and always risky, to credit the Legislature with notions that it does not clearly express in a statute, and it is even moredisastrous, as a matter of interpretation, to limit words of broad and general import when the statute itself provides no such limitations. I confess, therefore, that the rule laid down in Abdul Haq Mozoomdar v. Mohini Mohun Shaha which was overruled by the Full Bench of the Calcutta Court, is the rule which I adopt in interpreting s. 311 of the Code in this case. And in this view Mr. Banerji's contention that his client could not, after the sale of 3rd September 1880, avail himself of ss. 311 and 312 of the Code of Civil Procedure if he wished to set aside the sale, fails. I do not say that his omission to do so debarred him from raising the defence which he has raised in this suit. But what I do maintain is, that, he having failed in this case to prove any title in him paramount to the title of the deceased judgment-debtor Dal Chand, whose rights and interests were sold in the auction-sale of 3rd September 1880, he having been found to be the owner of the property in suit, the defendant-appellant cannot succeed in resisting the suit by dint of proving technical irregularities in the sale without proving substantial injury to him [458] self within the meaning 1 of s. 311, such as would vitiate the plaintiff-respondent's title, namely, the certificate of sale which his predecessor in interest obtained under s. 316 of the Code conveying to him the rights of the deceased Dal Chand.

Now, upon this question as to what irregularities in an execution sale would justify its being set aside under ss. 311 and 312 of the Code, there is not, I am afraid, full accord in the ratio decidendi of the various rulings of this Court, and, so far as I am concerned in them, they were amply considered by my brother Brodhurst in Ganga Prasad v. Jag Lal Rai, where be dissented from the learned Chief Justice upon a question which does not arise in this case, and which I need not therefore consider any further, beyond saying that the difference of opinion in that case related to the exact effect to be given to s. 290 of the Code so far as it prohibits sales within thirty days of the proclamation.

We are not in this case concerned with any imperative or prohibitory provisions of the Code as to execution sales, and I think that Mr. Banerji's argument proceeded upon inferences to be derived from the statute rather than upon any express provisions which, even according to his contention, would vitiate the auction-sale of 3rd September 1880, by the mere circumstance of the judgment-debtor Dal Chand not being alive at the time of the sale. I have already pointed out that he must be taken to have been alive at the date of the attachment and proclamation for sale, and that those proceedings must therefore be presumed to have been duly taken by the Court executing the decree. I have also said enough to show that the heirs of Dal Chand should have been brought upon the record, also that the defendant-appellant, though a third party according to his case, might have appeared on the scene to set aside the sale under ss. 311 and 312 of the Code. But the fact remains that he did not do so, and though as I have already said, he is not debarred from raising his present defence to the action any more than he would have been from other remedies, such as objecting to attachment under s. 278 or maintaining a suit under s. 283 or s. 335 [459] of the Code, we have to consider whether in the absence of any title in himself independent of the deceased Dal Chand, he has sustained any substantial injury such as would have induced the Court if he had objected under s. 311 to set aside the sale or should induce us now in this regular action to vitiate the sale, for the solitary reason that at the date of the sale the judgment-debtor Dal Chand was not alive.

It seems to me that the omission to bring upon the record the legal representative of the deceased Dal Chand was a mere irregularity which could not per se vitiate the sale without proof of substantial injury within the meaning of s. 311 of the Code. In Jasoda v. Mathura Das I suggested a doubt whether what might be called a “material irregularity” within the meaning of s. 311 would not by itself vitiate a sale without proof of substantial injury, and in Ram Chand v. Pitam Mal I doubted my own suggestion in the earlier case, and I think I may say that the latter case was governed entirely by the Full Bench ruling in Mahadeo Dubey v. Bhola Nath Dichit, as my remarks at page 517 of the report show.

What I hold now, however, is that, for purposes of setting aside a sale under s. 311, the irregularity, whether material or simpler irregularity, is not sufficient unless “substantial injury by reason of such irregularity” is proved. I think this is the effect of much of what was said by the Lords of the Privy Council in Girdhari Singh v. Hurdeo Narain Singh and in Olpherts v. Mahabir Parshad Singh, and I think the law now may be taken to be settled by the latest ruling of their Lordships on the subject in the case of Arunachellam Chetti v. Arunachellam Chelti.

The principles upon which these rulings proceed leave no doubt in my mind that even if the defendant-appellant had been impleaded as the legal representative of the deceased Dal Dhand, or had come in as a third party to set aside the sale under ss. 311 and 312, he [460] could not have succeeded without proof of substantial injury, and indeed Dal Chand himself if he had been alive and made such objections after the sale of 3rd September 1880, he too could not succeed in setting aside the sale without proving such injury. In the present case there is no allegation of such substantial injury as would require the setting aside of the sale, and the defendant-appellant naturally could not proffer such a plea consistently with the rest of his defence as to his title being independent of Dal Chand,—a plea which has been found against himlby the lower appellate Court upon the evidence.

This being so, I fail to see what the defendant-appellant has to complain of. He is not the owner of the property which the plaintiff's predecessor in title purchased on the 3rd September 1880, in a sale which could not, in the absence of substantial injury be set aside at the instance of Dal Chand himself or of his legal representatives, much less at the instance of a third party like the defendant-appellant who claims a title independent of Dal Chand. For the reasons which I have stated, I hold that, though the sale of 3rd September 1880 was irregular by reason of the legal representative of the deceased judgment-debtor Dal Chand not being brought upon the record, notwithstanding his death subsequent to the attachment and proclamation for sale, the irregularity not having been proved to have caused any substantial injury within the meaning of s. 311 of the Code of Civil Procedure to the defendant-appellant or to any one else, the sale was not vitiated, and conveyed validly to the plaintiff's predecessor in title, Bhabuti Singh, the purchaser at that sale, all the rights and interests which the deceased Dal Chand possessed, and that therefore the suit was rightly decreed by the Courts below. I would therefore dismiss this appeal with costs.

Appeal dismissed.