The failure to add the legal representative of a deceased judgment-debtor to the record after attachment is only an irregularity, and a sale in execution carried out against a dead person is not per se void, but can only be set aside for irregularity, especially when the purchaser is a bona fide purchaser for value.

Spencer, J.

1. This suit was brought by one of the reversioners to the estate of one Muruga Pillai for a declaration on behalf of himself and defendants 6 and 7 that the private sale of items 1 to 8 in the plaint schedule and the Court, sale of items 9 to 11 during the lifetime of Muruga Pillais widow (first defendant) are not binding beyond the lifetime of the widow, who died during the pendency of the appeal in the lower Appellate Court. The District Munsif dismissed the suit in toto.

2. In appeal the Additional Subordinate Judge held that the Court sale of items 9 to 11 was void and gave the plaintiff a decree accordingly. He held that the private sale of items 1 to 8 by the widow under Exhibit B was binding on the reversioners to the extent of Rupees 1,000 only and made that amount a charge on these items excepting item 5 and half of item 8.

3. The learned Subordinate Judges reason for holding the court sale to be void was that it took place on January 17th, 1916, after Muruga Pillai had died on December 16th, 1915, and that no representatives of the deceased owner were brought on the record. He was of opinion that the Court had no jurisdiction to sell the properties of a deceased person without any representatives being brought on the record and in support of this view he cited Ramasami v. Bagirathi (1883) I.L.R. 6 Mad. 180 Krishnayya v. Unnissa Begam (1892) I.L.R. 15 Mad. 399 Groves v. Administrator-General (1899) I.L.R. 22 Mad. 119 and Rayarappan Nambiar v. Malikandi Aketh Mayan (1914) 26 M.L.J. 267. Besides these cases there is a recent decision of a Bench of this Court in Ragunathaswamy Iyengar v. Gopaal Rao (1921) 41 M.L.J. 547 in which, Ramesam, J., in holding that a sale in execution carried out against a dead person (or "no person" as he says) was void and should be regarded as a nullity and had not got to be set aside, observed that it was opposed to all notions of justice to allow legal proceedings to be taken against an estate without there being some one on the record to represent the estate.

4. I presume that the learned Judge when he used these words had in his mind the principle of audi alteram partem which in Narayana Kothan v. Kalianasundaram Pillai (1896) I.L.R. 19 Mad. 219 was spoken of as a principle which could not justifiably be disregarded except where it was necessary to do so in order to protect bona fide purchasers at Court sales. If any order is passed by an executing Court against a party without notice being given to him of the application which gave rise to the proceedings, I entirely agree that the party behind whose back such proceedings are taken, will not be bound by the order. Further, if process is issued without the notice, which order XXI, Rule 22, prescribes in cases where the judgment-debtor is dead or the decree is more than one year old, I consider that the want of notice might constitute a material irregularity entitling a person whose interests have been affected, to apply either under order XXI, Rule 90, or by suit to have any sale of property that has been held upon the decree-holders application set aside. But if the decree-holder has done all that the law requires him to do and if the judgment-debtor or one of the several judgment-debtors where there are more than one, happens to die during the course of the execution of the sale warrant, or, it may be, while the auctioneer is actually holding the auction, with due respect I fail to see how the sale is invalidated by the accident of the owners death before the sale is completed. It has been suggested that as soon as a judgment-debtor dies his interest in the property passes to his legal representatives, and that the law nowhere permits the sale of a dead mans assets. On the other hand Sections 50 and 53, Civil Procedure Code, speak of "the property of the deceased" and Section 50 provides for decrees being executed against such property; it may not be accurate to speak of a dead man as owning property; it is well underst