The amendment of a plaint to substitute the legal representatives of a deceased defendant is permissible under Section 153 of the Code of Civil Procedure and does not render the decree granted by the court a nullity.

1. This appeal is brought on behalf of the auction purchaser Jagarnath Raut, against the brder of the Additional Subordinate Judge of Arrah, dated the 22nd November, 1956 affirming the order of the Munsif of Buxar, dated the 31st January, 1956, setting aside the sale of the property held in an execution case, under the provisions of Sec. 47 of the Code of Civil Procedure.

2. It appears that respondent No. 1, the Commissioners of Buxar Municipality, brought a Small Cause Court suit against one Jugal Kishore Singh of village Chaugain for realising arrears of municipal taxes. The suit was instituted on the 2nd April 1953, against the said Jugal Kishore Singh. Later on the plaintiff applied for amending the plaint on the ground that Jugal Kishore Singh was dead before the presentation of the plaint, and the son of Jugal Kishore Singh, namely, Girishwar Prasad Singh, should be substituted in place of Jugal Kishore Singh. The Court ordered amend ment of the plaint "subject to the law of limita tion".

Notice of the suit was duly served upon the substituted defendants, who did not, however, contest the case. Accordingly a decree was granted in favour of the plaintiff-respondent on the 26th June, 1953, In execution of this decree the property in dispute was put to auction and it was ultimately purchased by the appellant Jagarnath Raut on the 5th May, 1955. The judgment-debtor Girishwar Prasad Singh filed an application for setting aside the sale on the 25th July, 1955. The application was allowed by the executing court on the ground that the notice under Order 21, Rule 22, was not served and the property was sold for a grossly inadequate price.

The lower appellate court affirmed the order of the executing court on the ground that the decree granted by the Small Cause Court in favour of the Commissioners of Buxar Municipality against Girishwar Prasad Singh was a nullity and the appellant also sustained substantial injury on account of the execution sale because the property was sold for a grossly inadequate price. On the question, of limitation the view of the lower appellate court was that the case is governed not by Article 166 of the Limitation Act but by Article 181 of the Limitation Act, because the decree of the Small Cause Court was a nullity.

3. In support of this appeal learned counsel who appeared on behalf of the appellant submitted in the first place that the case is governed by Article 166 of the Limitation Act and the application of the judgment-debtor to set aside the sale should have been dismissed by both the lower courts on the ground of limitation. It was conceded by learned counsel that if the decree of the Small Cause Court was a nullity then the case is governed by Article 181 of the Limitation Act and the decision of the lower appellate court would be right. The question, therefore, presented for determination in this appeal is whether the decree of the Small Cause Court in favour of the Commissioners of Buxar Municipality is a nullity in law. The argument put forward on behalf of the respondents is that the plaint in the Small Cause Court was presented on the 2nd, April, 1953, against Jugal Kishore Singh who was dead on that date and, therefore, the plaint was a nullity and there was no jurisdiction in the Small Cause Court to allow an amendment of that plaint on the 17th April, 1953, and substitute the name of Girishwar Prasad Singh in place of his deceased father Jugal Kishore Singh.

In support of this argument learned counsel for the respondents relied upon a decision of the Madras High Court in Veerappa Chetty V/s. Ponnen, ILR 31 Mad 86, a decision of the Calcutta High Court in Bejoy Chand Mahatap V/s. Amulya Charan Mitra, AIR 1914 Cal 895 and a decision of the Sind Chief Court in Municipal Corporation, Karachi V/s. Baradio Jumoo Mughal, AIR 1948 Sind 20. The leading case on the point is the Madras case, ILR 31 Mad 86 for the principle laid down in that case has been the basis for the decision in AIR