Case: Ram Chandra Arya Vs. Man Singh &amp; Anr

to the case before us at all. In that case, a stranger to the suit was the auction-purchaser of the judgment-debtors immovable property in execution of an ex parte money decree. Before the sale could be affirmed, the ex parte decree was set aside and the question arose whether the auction-purchaser was entitled to a confirmation of the sale under 0. 21, R. 92 C.P.C. The Court held that the sale should be confirmed. The law makes ample provision for the protection of the interest of the judgment-debtor, when his property is sold in execution. He can file an application for setting aside the sale under the provisions of 0. 21, Rr. 89 and 90, C.P.C. If no such application was made, or when such an 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 parte 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 he set aside otherwise than by resort to the provisions of Rules 89 and 90 of Order 21, Civil Procedure Code.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 safe can be resisted without haying that sale set aside. The decision of this Court in that case itself bring 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 Court may refuse to confirm a sale, as, for instance, where a sale held without giving notice to the judgment-debtor, or where the Court is misled in fixing the reserve price or when there was no decree in existence at the time when the sale was held." 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 Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullity. 5. Learned Counsel also referred us to the decision of the Privy Council in Khiarajamal v. Daim, (1904) 32 Ind App 23 (PC), but even that case, in 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 mortgagors, 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, the remarks made by the Privy Council when on which learned Counsel relied, related to dealing with an earlier decision in Malkarjun v. Narhari, (1900) 27 Ind App 216 (PC). After discussing the ratio of that case, their Lordships at the end remarked:"In coming to this conclusion, their Lordships are quite sensible of the importance of upholding the title of persons who buy under a judicial sale: but in the present case the real purchaser was the 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 to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, 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 purchaser could not be defeated by him. We are not prepared to 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. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]It appeals from the judgment of the High Court that, in that Court, no attempt was made on behalf of the appellant to contend that the decree which was obtained against Ram Lal and in execution of which the house was sold was not null and void and was not a nullity. On the face of it, the decree was passed in contravention of the provisions of O. 32, R. 15 of theCode of Civil Procedure. It has been found as a feet 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 decree passed in that suit.It is now a well-settled principle that, if a decree is passed against a minor without appointment of a guardian, the decree is a nullity and is void and not merely voidable. This principle becomes applicable to the case of a lunatic in view of R. 15 of O. 32 of theCode of Civil Procedure so that the decree obtained against Ram Lal was a decree which, has to be treated as without jurisdiction and void. In these circumstances, the sale held in execution of that decree must also be held to be voidThis 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 Rr. 89 to 91, C.P.C.In the present case, as we have held, the decree passed against Ram Lal was void and has to be treated as non-existent and, consequently, the sale must be held to be a nullitybut even that case, in our opinion, does not help the appellantWe are unable to read any such principle in that decision. In fact, the Privy Council, in very clear words, held that the sale was a nullity and only, at the and, 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 purchaser could not be defeated by him. We are not prepared to 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. In the present case therefore, no rights could be acquired by the purchaser Prabhu Dayal, the father of the appellant, when he purported to purchase the house in execution of the decree against Ram Lal. Ram Lal having died without leaving any heir, the property naturally passed by escheat to the Maharaja of Jaipur.That principle is clearly recognised in Hindu Law. Reference may be made to Mullas Hindu Law, 13th Edition, p. 133, para 59.