The validity of a court auction sale is upheld even if the judgment debtor's legal representatives are not present at the confirmation stage, provided they were represented at the sale.

1. The facts giving rise to this appeal, briefly stated, are as follows:

2. In Civil Suit No. 131 of 1923 money decree was obtained against Ratanchand Walchand and Hirachand Gambhirmal. It is not disputed that the decree was a joint and several decree against both these judgment - debtors. In execution of that decree, auction sale in respect of the property involved in the present suit was held on 23rd March 1944. The sale was confirmed on 14th October 1944. For some reasons which are not clear on record, the sale certificate was issued as late as 18th March 1953. It is not disputed that judgment - debtor Ratanchand Walchand died on 6th March 1935 i.e., long before the auction - sale in question was held. Judgment - debtor Hirachand Gambhirmal died on 21st April 1944 i.e. after the auction - sale in question, but within 30 days thereof. The plaintiff Manikchand Daulatram Bora filed the present suit on 10th August 1956 to recover possession of the three houses which are the subject - matter of the present suit on the basis of the sale certificate issued to him.

3. Defendant Motilal Hirachand Marwadi, who is the son of above - mentioned judgment - debtor Hirachand, by his written statement, Exhibit 10, contends that the suit is bad for want of necessary parties, it is barred by limitation, the debt for which the property was sold was avyavaharik. i.e. illegal and immoral, hence not binding on him, the decree in execution of which the sale was held is not binding on him as he was not a party to the suit, since he was not brought on record as Hirachand's heir in the execution proceedings, the auction sale is not binding on him, and the present suit for possession is, therefore, not tenable.

4. The learned trial Judge held that the auction - sale in question was not binding on the defendant, inasmuch as he was not brought on record on the date of confirmation of the sale. In view of this finding, he dismissed the plaintiffs suit with costs. It may be mentioned here that the defendant's contentions that the debt for which the decree was passed was avyavaharik, that the suit was not tenable for want of necessary parties, were not pressed in the trial Court. Although the plea of limitation was taken in the written statement, no specific issue on that point was asked for in the trial Court.

5. The plaintiff preferred an appeal to the District Court, Ahmednagar. The learned Assistant Judge, who heard the appeal, held that the auction - sale in question was legal and valid inasmuch as judgment - debtor Hirachand was alive on the date of the sale, the fact that the heirs of the other judgment - debtor Ratanchand were not brought on record did not matter as the decree in execution of which the auction - sale was held was a joint and several money decree, and the fact that on the date of the confirmation of the auction - sale the present defendant was not brought on record as the legal representative of deceased judgement - debtor Hirachand did not vitiate the auction - sale. In view of these findings, he allowed the appeal, set aside the decree of the trial Court and decreed the plaintiff's claim.

6. In this second appeal, Mr. Pendse for the defendant contends that the view taken by the trial Court is correct and that of the lower appellate Court is wrong. Mr. Pendse invites our attention to Sir Dinshah Mulla's Commentary on Civil Procedure Code, Vol. I, 13th Edition, page 262. The learned author mentions that under the present Code of 1908 the words 'fully satisfied' have been substituted for the words 'fully executed'.