JUDGMENT

Sen, J.-Late Hanuman Das filed a suit for recovery of money against Reghunandan Ram and his sons - Mewalal, Misri Lal and Sewa Lal - and his brother Babunandan Ram. In the suit, an order of attachment before judgment was passed in respect of the house now in dispute. The suit was decreed against Raghunandan Ram and his three sons but was dismissed against Babunandan Ram. The decree-holder applied for execution of the decree (execution case No. 3 of 1951) by sale of one half share in the disputed house. The sons of Raghunandan Ram filed an objection under Section 47 of the Code of Civil Procedure that it is only the share of Raghunandan Ram in the joint family property which could be sold. The objection was upheld. Hanuman Das went up in appeal to the High Court and contended that the sons were liable for the payment of the father s debt. The entire one half share of the father and of the sons in the ancestral property was liable to be sold in the execution of the decree. The appeal was allowed and it was held that the decree-holder, i.e., Hanuman Das was entitled to proceed against one half share of the house in dispute.

2. After the decision of the appellate court, execution proceeding commenced once again but Raghunandan Ram died on 9.1.1960. The decree-holder moved an application for striking off the name of Reghunandan Ram of the record and continuing the execution proceedings. It was contended that the heirs of Raghunandan Ram-Mewa Lal, Misri Lal and Sewa Lal - were already parties in the proceedings and that it was not necessary to bring them on record as legal representatives. The prayer was allowed by the Civil Judge by passing an order as prayed for after giving a notice of hearing to the sons of Raghunandan Ram.

3. In the execution case, an order for sale of the half share of the disputed house was made, a proclamation of sale was made and 20.4.1961 was fixed as the date of sale. However, the sale did not take place because a compromise was arrived at between the sons of Raghunandan Ram and the decree-holder. It was agreed that the sons would pay the whole of the decretal amount in monthly instalments of Rs. 500/- each. A sum of Rs. 500/- was paid to the decree-holder who was in the court. The sons of Raghunandan Ram were to pay the remainder of the decretal dues in three instalments on 31.5.1961, 30.6.1961 and 31.8.1961. In default of payment of any of these instalments, Hanuman Das was entitled to put the attached house to sale without issuing any further fresh sale proclamation. On this compromise being reached, the Civil Judge passed an order on 31.4.1961 striking off the execution case for the time being.

4. The judgment-debtors, however, did not pay the instalments. Another application for execution was made on 16.11.1961 (execution case No. 22/1961). In that case, it was prayed that the record of the original case No. 3/1951 be sent for and execution proceeded with in accordance with law in view of the default committed by the judgment- debtors. Pursuant to the said prayer, one half share in the disputed house was put to sale once again and was ultimately sold to one Bhagga Ram on 8.9.1962. The entire purchase price was paid by Bhagga Ram on 17.9.1962.

5. The case of the appellants who are the sons of the late Bhagga Ram is that they are living in the house since Bhagga Ram purchased the property in the auction sale. It is alleged that the property was in a very bad state and Bhagga Ram had spent large sums of money in the renovation of the house.

6. The widow and daughters of Raghunandan Ram filed an objection on 11.10.1962 in the court alleging that after the passing of the Indian Succession Act, 1956, the widow and daughters became entitled to the property along with three sons but were not brought on record after the death of Raghunandan Ram and that the sale had taken place behind their back. The omission to implead them went to the root of the jurisdiction of the execution court to sell the prope