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PETITIONER: RAM CHANDRA ARYA

       Vs.

RESPONDENT: MAN SINGH & ANR.

DATE OF JUDGMENT: 08/12/1967

BENCH: BHARGAVA, VISHISHTHA BENCH: BHARGAVA, VISHISHTHA SHAH, J.C. RAMASWAMI, V.

CITATION:  1968 AIR  954            1968 SCR  (2) 572

ACT: Code  of Civil Procedure (Act 5 of 1908), O. 35, r.  15-Suit against lunatic without appointment of a  guardian-ad-litem- Decree  in suit whether a nullity-Sale in execution of  such decree whether void.

HEADNOTE: An ex-parte decree was passed against R in a money suit  and in  cxecution thereof his house was sold.  It was  purchased by  the appellant’s father.  Formal possession was given  to the  purchaser but R continued to reside in the  house  till his death in 1945.  As he died without heirs the Maharaja of Jaipur  whose subject he was took possession of  the  house. The appellant’s father then filed a suit for the  possession of  the house.  The suit was contested on the ground that  R was a lunatic and since the earlier suit had been instituted against him without appointment of a guardian-ad-litem,  the decree  in  that suit was a nullity and the  execution  sale void.   This  defence was accepted by the trial  court,  the first appellate court, and the High Court.  By special leave the appellant came to this Court. HELD  : It is 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 0.32 of the Code of Civil Procedure,  so that the decree obtained against R was a decree which had to treated as without jurisdiction and void. [574 A-B] 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 when  he  purported  to purchase  the  house in execution of the decree  against  R. [576 B] R  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. [576 C] Janak  Rai  v.  Gurdial Singh & Anr.  [1967]  2  S.C.R.  77, Khiarajmal & Ors. v. Daim & Ors. 32 I.A. 23 and Malkarjun v. Narhari, 27 I.A. 216, referred to.

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JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 379 of 1965. Appeal  by special leave from the judgment and decree  dated December  21, 1961 of the Allahabad High Co-,lit  in  Second Appeal No. 920 of 1952. J.   P. Goyal and Sobhagmal fain, for the appellant. S. P. Sinha and M. 1. Khowaja, for the respondents. 573      The Judgment of the Court was delivered by Bhargava, J. This  appeal  arises out of a suit for  possession  of  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 on 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.  Admmittedly ,Ram Lal continued to live in the house even thereafter, and on  19th September, 1945, he died leaving no heir.  Ram  Lal was  a subject of the Maharaja of Jaipur and, on  Ram  Lal’s death,  the servants of the Maharaja took possession of  the house on 20th September, 1945. 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 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 confirmed   the   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  by the  trial  Court and that decision has been upheld  by  the first and the  second  appellate Courts on the  ground  that the decree against Ram Lal -was a nullity and the sale  held in execution of that decree was, therefore, void. It appears from *he 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 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 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

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and is void and not merely voidable.  This principle becomes applicable  to the case of a lunatic in view of r. 15 of  0. 32  of  the  Code 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  circum- stances, the sale held in execution of that decree must also be held to be void. Learned  counsel  appearing  on  behalf  of  the   appellant contended that this proposition should not be accepted by us in  view  of  the decision of this Court  in  Janak  Rai  v. Gurdial Singh and Another(1).  The decision of that case is, however,  not applicable to the case before us at  all.   In that case, a stranger to the suit was the  auction-purchaser of the judgment-debtor’s 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  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 provision  for  the  protection  of  the  interests  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  be  set  aside  otherwise  than  by  resort  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 he-Id, 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 court may refuse to  confirm               a sale, as, for instance, where a sale is held                             without  giving notice to the  judgmen t-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."                (1)  [1967] 2 S.C.R. 77.                                    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 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 1 to be a nullity. Learned  counsel  also referred us to the  decision  of  the Privy   Council  in  Khiarajmal  and  Others  v.  Daim   and Others(1), 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

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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, on which learned counsel relied,  related  to the remarks made by the  Privy  Council when  dealing  with  an earlier  decision  in  Malkarjun  v. Narhari(1).  After discussion 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 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- (1) 32 I.A. 23: (2) 27 I.A. 216. 576 ,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 Mulla’s Hindu Law, 13th Edition, p. 133, para. 59. The   decision   given   by  the  High   Court,   in   these circumstances,   was  perfectly  correct.   The  appeal   is dismissed with costs. G.C.             Appeal dismissed. 577