RAM CHANDRA ARY A v. MAN SINGH & Anr.

Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal, the father of the appellant, for possession of the house on 10th July, 1946. The suit was contested on the ground that Ram Lal was a lunatic and the earlier suit No. 354 of 1939 had been instituted against Ram Lal without appointment of a guardidn od-litem, so that the decree in the &Uit was a nullity. The sale in execution of !hat decree was also, therefore, challenged as void. This defence was accepted by the trial Court and the suit was dismissed on 24th January, 1950. The first appellate Court also upheld that decision. The second appeal came before a learned single Judge of the Allallabad High Court who referred it to a Division Bench as, in his opinion, the case involved an iillportant question of law. The Bench of the High Court confirmed decisions of the lower Courts and, consequently, the appellant has now come up to this Court by special leave.

As has been mentioned above, the suit was dismissed b:; trial Court and that decision has been upheld by the first and the second appellate Courts on the ground that the decree against in execution of that Ram Lal was a nullity and the sale held decr.e~ was,, therefore, void. judgment It appears of the High Court that, in that Court, no attempt was made on behaif of the appellant to contend that the decree which was obtained a£ainst Ram Lal and in execution of which the house was sold was not nul! and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of 0. 32 r. 15 of the Code of Civil Procedure. It has been found as a fact that Ram Lal was insane when suit No. 354 of 1939 was instituted as well as when the house was sold in execution of the 574 SUPREME COUllT REPORTS [1968] 2 S.C.R. decree passed in that suit.. It is now. a well-settled principle that, if a decree 1S passed agamst. a mmor without appointment of a guardian, .the dcc~ee is a nulhty and is void and not merely void ~ble.

This pnnc1ple becomes applicable to the case of a lunatic m view of r. 15 of 0. 32 of the Code of Civil Procedure that the decree obtained against Ram Lal was a decree which has In these circwn to be treated as without jurisdiction and void. Hances, the sale held in execution of that decree must also be held to be void. the. Learned counsel appearing on behalf of the appellant contended that this proposition should not be accepted by us in view of the decision of ihis Court in Janak Raj v. Gurdia! Singh mid An other('). The decision of that case is, however, not applicable to In that case, a stranger to ihe suit was the case before us at all. the auction-purchaser of the judgment-debtor's immovable pro perty in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the ques tion arose whether the auction-purchaser was entitled to a con firmation of the sale under 0.

21, r. 92, C.P.C. The Court held that the sale should be confirmed. The law makes ample provi sion for the protection of the interests of judgment-debtor, when his pro~rty is sold in execution. He can file an applica!ion for setting aside the sale under the provisions of 0. 21, rr. 89 and If no such application was made, or when such an 90, C.P.C. application was made and disallowed, the Court has no choice but to confirm the sale. This principle can be of no assistance to the appellant in the present case. because, in that case, when the sale was actually held, a valid ex parre decree did exist. The sale, having been held in execution of a valid existing decree, was itself valid; and the only question that came up for decision was whether such a valid sale could be set aside otherwise than by re; ort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. In the present case, the decree. being a nullity, has to be treated as non est and, consequently, the sale, when held, was void ab initio.

In such a case, there is no question of any party having to resort to the provisions of rr. 89 and 90 of 0. 21, C.P.C. to have the sale set aside. Any claim based on a void sale can be resisted without having that sale set aside. The decision of this Court in that case itself brings out this distinction by stating: "It is to be noted however that there may be cases in which, apart from the provisions of rr. 89 to 91, the instaace, court may refuse to confirm a sale. as, where a sale is held without giving notice to the judg ment-debtor, or where the court is misled in fixing the reserve rrice or when there was no decree in exi~tence at the time when the sale was held. " (19671 2 S.C.R. 77. l 1) A B c D E F G H • A B c D E F G H RAM CHANDRA v. MAN SINGH (Bhargava, J.) 575 This Court, thus, in that case, clearly recognised that, if there be no decree in existence at the time when the sale is held, the sale can be ignored and need not be set aside under the provisions of In the present case, as we have held, the rr.

89 to 91, C.P.C. decree passed against Ram Lal was void and has to be treated as non-existent anc! consequently, the sale must be held to be a nullity. Learned counsel also referred us to the decision of the Privy Council in Khiarajmal and Others v. Daim and Others('), but even that case, ill our opinion, does not help the appellant. In that case, the equity of redemption in respect of certain property was sold in execution of decrees Without service of notice on some of the mortgagors. The Privy Council held: "Their Lordships agree that the sales cannot be treated as void or now be avoided on the grounds of any mere irregularities of procedure in obtaining the decrees or in the execution of them. But, on the other hand, the Court had no jurisdiction to sell the property of persons who were not parties to the proceedings or properly represented on the record. As against such persons the decrees and sales purporting to be made would be a nullity and might be disregarded without any proceeding to set them aside.

" Proceeding further and dealing with the case of one of the mort gagors, it was held that, because his interest in the property had been ignored altogether and there was no decree against him, the Court had no jurisdiction to sell his share. The portion of the judgment, on which learned counsel relied, related to the remarks made by .the Privy Council when dealing with an earlier decision in Malkarjun v. Narhari('). After discussion the ratio of that case, their Lordships at the end remarked: "In coming to this conclusion, their Lordships aie quite sensible of the importance of upholding the title of persons who buy under a judicial sale; but present case the real purchaser was judgment creditor, who must be held to have had notice of all the facts. " On the basis of this comment, it was urged that their Lordships of the Privy Council intended to lay down that, if the auction purchaser was not a judgment-creditor, the sale could not be a nullity.

We are unable tel read any such principle in that deci sion. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the end, took notice of the fact that, in that particular case before it, the real purchaser happened to be the judgment creditor, so that the interest of a stranger (I) 32 I.A. 23: (2) 27 I.A. 216. 576 SUPJlEME COURT REPOJlTS [1968) 2 S.C.R. purchaser cou]j not be defeated by him. We are not prepared to A ·read in that judgment any decision that, if the auction-purchaser is not the judgment creditor but a stranger, the sale would be a valid sale, even though it was held in execution of a decree which was void. A sale is void ab initio if it is held in execution of a decree which is a nullity and, consequently. to. be treated as non existent. acquired by the purchaser Prabhu Dayal, appellant, when he purpor:ed to purchase the house in execution of the decree against Ram Lal.