Omission to issue notice to legal representatives of deceased judgment-debtor under Order 21, Rule 22, Civil Procedure Code does not render the sale void.

Headnote:
CIVIL PROCEDURE CODE - Execution of decree - Sale of property - Notice to legal representatives of deceased judgment-debtor - Omission to issue notice - Effect - Sale not a nullity - Voidable sale - Proviso to Sub-rule (2) of Rule 22 of Order 21 - Error in description of legal representatives - Effect - Omission to substitute some of the legal representatives - Effect.
Fact of the Case:

A mortgage decree was passed against the defendants 1 to 5. After the passing of the decree, two of the defendants died. Their legal representatives were not brought on record. The plaintiff made an application to the Court stating that the deceased defendants had left two sons as their legal representatives and that their guardian was their uncle defendant No. 1 Mahadeo, who was then the manager of the joint family consisting of himself and the sons of Narayan and that therefore Bhayya and Nathu be substituted in place of Narayan and Mahadeo appointed as their guardian-ad-litem. Notices were issued upon this application. Mahadeo, however, refused to act as guardian of these two persons and, therefore, the Court reader was appointed as their guardian-ad-litem and they were brought on record. Thereafter, the plaintiff filed an application for the execution of the decree against Mahadeo, defendant No. 1, and against Nathu and Bhayya, who had been brought on record as the sons of Narayan. Subsequent to that sale notices were issued to Mahadeo as well as Nathu and Bhayya and eventually the property was ordered to be sold by Court auction on 29-4-1942.
Finding of the Court:

The Court held that the sale was not a nullity. It was only a voidable sale and could be avoided by the legal representatives either by making an application under Order 21, Rule 90, Civil Procedure Code, or, where permissible toy filing a separate suit. The Court further held that, in a jurisdiction in which the proviso to Sub-rule (2) of Rule 22 of Order 21, is in force, an omission to issue a notice under Order 21, Rule 22, does hot render the sale even voidable unless the irregularity has resulted in a substantial injury to the legal representatives. The Court also held that, where a decree-holder acting bona fide describes the legal representatives of the deceased judgment-debtor by wrong names, the error is one of description only and a sale held after notice to such persons is not a nullity. The Court further held that, the omission to substitute some of the legal representatives of the deceased judgment-debtor does not render an execution sale void even to the extent of the interest which such legal representatives, took in the property of the deceased judgment-debtor.
Issues: Whether the sale was a nullity due to the omission to issue a notice to the legal representatives of the deceased judgment-debtor?
Ratio Decidendi: The Court held that the sale was not a nullity. It was only a voidable sale and could be avoided by the legal representatives either by making an application under Order 21, Rule 90, Civil Procedure Code, or, where permissible toy filing a separate suit. The Court further held that, in a jurisdiction in which the proviso to Sub-rule (2) of Rule 22 of Order 21, is in force, an omission to issue a notice under Order 21, Rule 22, does hot render the sale even voidable unless the irregularity has resulted in a substantial injury to the legal representatives. The Court also held that, where a decree-holder acting bona fide describes the legal representatives of the deceased judgment-debtor by wrong names, the error is one of description only and a sale held after notice to such persons is not a nullity. The Court further held that, the omission to substitute some of the legal representatives of the deceased judgment-debtor does not render an execution sale void even to the extent of the interest which such legal representatives, took in the property of the deceased judgment-debtor.
Final Decision: Appeal dismissed with costs.

Judgment -

1. This is an appeal by the defendants 1 to 5 to a suit for possession of two houses situate at Nagpur and for mesne profits.

2. The facts which are no longer in dispute arc as follows: On the foot of a mortgage deed executed by the defendant No. 1, Mahadeo, his brother Narayan, now deceased and his father Budhaji also now deceased, the plaintiff obtained a preliminary decree for sale of two houses belonging to them on 31-10-1933. He obtained a final decree for sale on 18-9-1939. It would appear that subsequent to the passing of the final decree but previous to the execution of the decree, Budhaji as well as Narayan died. Narayan left behind him two widows. Yamuna, defendant No. 4, and Parwati, defendant No. 6, and two sons Babusingh, defendant No. 2, and Harisingh, defendant No. 3, as his personal heirs. It is not clear as to the exact date on which Budhaji died, but it would appear that after his death his name was struck off apparently on the ground that his interest devolved upon his sons, who were already defendants to the suit and against whom a decree had been passed.

3. On 16-1-1940, the plaintiff made an application, Exhibit P-20, to the Court which passed the decree stating that Narayan died on 10-10-1939, leaving behind him two sons, Bhayya, aged 7 years and Nathu, aged 3 years, as his legal representatives and were in possession of his assets. He also stated that their guardian was their uncle defendant No. 1 Mahadeo, who was then the manager of the joint family consisting of himself and the sons of Narayan and that therefore Bhayya and Nathu be substituted in place of Narayan and Mahadeo appointed as their guardian-ad-litem. Notices were issued upon this application. Mahadeo, however, refused to act as guardian of these two persons and, therefore, the Court reader was appointed as their guardian-ad-litem and they were brought on record. Thereafter, the plaintiff filed an application for the execution of the decree against Mahadeo, defendant No. 1, and against Nathu and Bhayya, who had been brought on record as the sons of Narayan. Subsequent to that sale notices were issued to Mahadeo as well as Nathu and Bhayya and eventually the property was ordered to be sold by Court auction on 29-4-1942.

4. On 10-4-1942, Mahadeo, defendant No. 1, made an application to the Court stating that Narayan had left four legal representatives, two sons. Babusingh and Harisingh, and two widows, Yamuna and Parwati, that Nathu and Bhayya who had been brought on record were not the sons of Narayan, but that they were the sons of Mahadeo himself that it was therefore necessary to bring on record Babusingh and Harisingh as also the two widows and that until that was done, the execution of the decree could not be proceeded with.

Upon this application, the Court made an order on 17-4-1942 to the effect that it was no concern of Mahadeo that proper persons had not been brought on record and rejected his application. Sale was eventually held and the property was purchased by the plaintiff with the permission of the Court. He obtained symbolical possession of the property as it was in possession of tenants. It would appear that in spite of the purchase the plain tiff could not obtain possession of the property and the tenants did not pay the rent to him. He, there fore instituted the suit out of which this appeal arises.

5. It may be mentioned that the plaintiff joined the tenants as defendants to the suit and eventually obtained a decree not only against the defendants 1 to 5, but also against the tenants. The latter are apparently content with the decree.

6. A number of defences were raised on behalf of the defendants 1 to 5 in the Court below. Before us, however, only one point is pressed and that too only on behalf of the defendants 2 to 5. That point is that the sale was a nullity in so far as Narayans interest in the property was concerned inasmuch as it was held in the absence of and without notice to his legal representatives.

7. The

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