Confirmation of sale in execution held void.

In O.S.No.431 of 1935 on the file of the Court of the District Munsiff of Kandapur, a mortgage decree was passed by which the defendants therein were to pay a sum of money to the plaintiffs within a stipulated period in default of which a final decree had to be passed for sale of the mortgaged property. The defendants were members of a joint Hindu family of which the first defendant was the father and manager and defendants 2 and 3 were his two minor sons. The preliminary decree was passed on 30th November, 1935 and since no payment was made, a final decree Ex.B-2 was passed on 10th July, 1936. In pursuance of that final decree, the hypotheca was sold by public auction on 16th January, 1937 and the mortgagee decree-holder himself became the purchaser. Before the sale was confirmed, the first defendant Manjunatha Hebbar died on 23rd January, 1937. No steps were taken to declare that defendants 2 and 3 were the legal representatives of the first defendant and no attempt was made to appoint anybody as guardian ad litem of the minor defendants 2 and 3. But the sale was confirmed on 24th February, 1937, and the sale certificate Ex.P-3 dated 15th March, 1937, was issued to the auction-purchaser who obtained delivery by R.E.A.156 of 1937 on 17th April, 1937, Ex.P-4. Thereafter, the decree-holder-purchaser leased the property to defendants 1 and 2 in the suit and the last of these leases Ex.P-5 is dated 11th October, 1944. Later on, there was a notice of ejectment issued to defendants 1 and 2, see Ex.P-6 dated 7th January, 1946. To that, the present defendants 1 and 2 replied that by the auction-purchase the decree-holder-purchaser had not obtained any title but that the title in the property was vested in the present third defendant who had purchased the property under Ex. D-3, dated 1st September, 1943, from the two minor defendants in O.S.No.431 of 1935, who had become majors and that they had executed chalgeni lease deeds to the third defendant. In a family partition between the decree-holder and his brother, the property has been allotted to the first plaintiff in the present suit. Therefore the present suit was laid by plaintiffs 1 and 2 against the three defendants for recovery of possession with mesne profits.

Defendants 1 and 2 in the suit were the lessees and the third defendant is the purchaser of the rights in the property from the guardian for minor defendants who claim title adverse to the plaintiffs. The trial Court found that the auction sale vested title in the purchaser and therefore defendants 2 and 3 in O.S.No.431 of 1935 had nothing left in them which could be conveyed to the present third defendant and therefore decreed the suit. On appeal, the learned Subordinate Judge found that since at the time sale took place on 16th January, 1937, the minor defendants were not represented by any guardian ad litem, the sale was void and as such the decree-holder-purchaser did not obtain any title to the property Disagreeing with the trial Court which held that the non-appointment of a guardian ad litem for the minors before the sale was confirmed was only an irregularity which would not make the sale invalid, the learned Subordinate Judge held that since there was no legal representative for the first defendant Manjunatha Hebbar and since there was no guardian for the two minor defendants, the confirmation did not take any effect and therefore the purchaser had not obtained any title Hence the second appeal.

Satyanarayanna Rao, J., before whom this second appeal came on for hearing in the first instance has directed this case to be posted before a Bench as the question raised in this case relating to execution proceedings is practically bare of authority and it would be better if there was a decision of a Bench on the point and that is how this second appeal has come to be posted before us.

The first question that rises for consideration is whether the fact that Manjunatha Hebbar’s legal representatives, who w