For acquiring title by the auction purchase impleading of LRs necessary.

This second appeal has been referred to a Bench at the instance of Ramaswami, J., for the reason that the case raised a point as to the legal effect of death of a judgment-debtor after the issue of a sale certificate, but before the auction-purchaser obtains delivery of possession by proclamation and affixture under Order 21, rule 96, Civil Procedure Code, which is not covered by authority.

One Uthandarayan Ambalam was originally the owner of the properties in suit and the plaintiff’s paternal grandfather, Chidambaram Chettiar, had a money claim against him. Before a suit could be filed for the realisation of the dues, Uthandarayan died in September, 1924, leaving a widow, Meenakshi and his mother Alagu who are stated to have entered into possession of these properties. Therefore Chidambaram Chettiar filed O.S. No. 457 of 1925 on the file of the District Munsif’s Court, Devakottai, for the recovery of the moneys due to him impleading Meenakshi and Alagu as defendants, obtained a decree, attached and brought to sale among others the properties now in suit, and purchased them himself. The sale was held on 13th August, 1928 and was confirmed on 14th September, 1928.

In due course, the purchaser applied in E.A. No. 348 of 1929 for the delivery of possession of the properties purchased and as these were admittedly in possession of tenants, delivery of possession was effected by proclamation and affixture on 8th July, 1929. Meenakshi, the widow of Uthandarayan, is stated to have remarried sometime before 1928, and Alagu the mother, who became the heir by reason thereof, died on 22nd November, 1928. No legal representatives of Uthandarayan or Alagu were impleaded in O.S. No. 457 of 1925 after Alagu’s death.

As would be seen the plaintiff is the representative of the purchaser to whom delivery of the suit property was effected in July, 1929 and he brings this suit for declaration of his title to the suit properties, for possession thereof and for mesne profits. According to his plaint, his-grandfather, Chidambaram Chettiar, got into possession of the suit properties on 8th July, 1929, and he and after him, plaintiff’s father was in enjoyment thereof until September, 1934, when the plaintiff’s father died leaving the plaintiff an infant of tender years, when one Vinayakam Ambalam who was an agnatic reversioner of Uthandarayan trespassed upon the suit properties and has been in possession ever since. The present suit was filed on 8th July, 1941, by the plaintiff then a minor 12 years old by his property-guardian.

The first two defendants are the legal representatives of Vinayakam Ambalam, being his sons and the other defendants are stated to be in possession of the properties being tenants. A written statement was filed on behalf of the first defendant which the second defendant adopted. The other defendants, remained ex parte. Originally the suit was decreed ex parte against all the defendants but subsequently the ex parte decree was set aside as against the second defendant, that as against the other being confirmed.

The defence of the second defendant who is the appellant before us is that the proceedings for delivery of possession in pursuance of the order in E.A. No. 348 of 1929 were fraudulent and that these proceedings were void for the reason that ! on the death of Alagu on 22nd November, 1928, no legal heirs of Uthandarayan had been brought on record and that the delivery of possession effected on 8th July, 1929, without the legal representatives being impleaded is void; that consequently the defendants acquired a title by adverse possession under Article 144.

Before we deal with the point mentioned above, it is necessary to mention certain findings on the basis of which these questions have to be considered. The plaintiff’s case that there was a trespsass in 1934 and that it was only then that possession of the plaintiff’s family was lost, has been found against by both the courts. The defendants had further