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

11th January, 1939, one Ram Das filed suit No. 354 of 1939 against Ram Lal in the Court of Judge, Small Causes, for recovery of a sum of Rs. 144. That suit was later transferred to the Court of the Munsif and an ex parte decree in that suit was passed an 27th March, 1939, after the Court held that Ram Lal had been sufficiently served. In execution of that decree, the house was sold and the sale certificate was issued on 21st January, 1941 in favour of Prabhu Dayal, the father of the appellant in this appeal. Formal delivery of possession was taken and the certificate of delivery of sale is dated 15th May, 1941. Admittedly, Ram Lal continued to live in the house even thereafter and on 19th September, 1945, be died leaving no heir. Ram Lal was a subject of the Maharaja of Jaipur and, on Ram Lals death servants of the Maharaja took possession of the house on 20th September, 19452. Thereupon, suit No. 552 of 1946 was filed by Prabhu Dayal, the father of the appellant, for possession of the home 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 guardian-ad-litem, so that the decree in the suit was a nullity. The sale in execution of that 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 Allahabad High Court who referred it to a Division Bench as, in his opinion, the case involved an important question of law. The Bench of the High Court confined the decisions of the lower Courts and, consequently the appellant has now come up to this Court by special leave.

Reasoning: 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.