(1.)This appeal arises out of a suit filed by the plaintiff under Order XXI, Rule 63, of the Civil Procedure Code, for a declaration that the property described in the plaint was liable to attachment and sale in execution of the decree in Suit No. 520 of 1925. One Ambanna Balappa obtained a money decree against one Revanayya in Suit No. 520 of 1925 of the Hubli Court. The plaintiff got that decree assigned to himself by Ambanna, and in execution of that decree he sought to recover the decretal amount by attachment and sale of the property described in the plaint. Defendant No. 1 obstructed the attachment and sale on the ground that he was the owner of the property as he had purchased it from one Rudrayya who had purchased it at an auction held in darkhast No. 400 of 1936. That darkhast was given by the Dharwar Bank in execution of a decree which it had obtained against Revanayya in Suit No. 88 of 1933. When that darkhast was pending, Revanayya died and his divided brother Virupaxayya, defendant No. 1, was brought on record as his legal representative. When a notice of the darkhast was served on him, he put in a written statement that he was not Revanayya s heir or legal representative, and that Revanayya had left a daughter Tayawwa, defendant No. 2, and also a son who was taken in adoption by the said Tayawwa. He, therefore, suggested that Tayawwa should be brought on record as Revanayya s legal representative, and took no further part in the darkhast. But on an affidavit put in on behalf of the Dharwar Bank, the executing Court held defendant No. 1 to be the legal representative of Revanayya and proceeded with the darkhast. The property in suit which had already been attached was sold by auction and was purchased by Rudrayya, the brother of defendant No. 1 s wife. The sale was confirmed on September 13, 1937, and a sale certificate was issued to him on September 21, 3937. Rudrayya obtained possession of the property on December 24, 1937, on the strength of the sale certificate and sold it to defendant No. 1 on January 27, 1938. Therefore, when the present plaintiff attached the property in execution of Ambanna s "decree which had been got assigned to himself, defendant No. 1 obstructed him, and in Miscellaneous Application No. 214 of 1938, he obtained an order in his favour that the attachment should be raised. The plaintiff, therefore, filed this suit within one year thereafter as required by Order XXI, Rule 63, of the Civil Procedure Code. Defendant No. 1 contended that Rudrayya had duly purchased the property in execution of a decree against Revanayya and that as he had sold it to him, the plaintiff could not seek the attachment and sale of the same property in execution of his decree against Bevanayya. The plaintiff contended that in the darkhast of the Dharwar Bank, Revanayya was not properly represented as defendant No. 1 was not Ms legal representative, that although defendant No, 2 Tayawwa was his legal representative, the Dharwar Bank wilfully refused to implead her, and that as defendant No. 1 who was not the legal representative was wrongly shown as such in the darkhast,, the executing Court had no jurisdiction to bring Revanayya s property to sale. Both the Courts below disallowed this contention and dismissed the plaintiff s suit.
(2.)The facts set out above are not in dispute. It is true that defendant No. 1 was not the legal representative of Revanayya as he was his divided brother and Revanayya s daughter Tayawwa was his nearest heir, his son having gone in adoption to her. But the decree-holder, that is to say, the Dharwar Bank, rightly or wrongly stated that defendant No. 1 was the legal representative of Revanayya and put in an affidavit in support of that statement. Although defendant No. 1 disputed that statement, the executing Court held on the strength of the affidavit that he was the legal representative and continued the darkhast against him. In Malkarjun bin Shidramappa Pasare v. Narhari bin Shivappa (1900) L.R. 2T I. A. 216 it has been held that in such a case the executing Court cannot be said to have had no jurisdiction to proceed with the darkhast. The reasoning of that decision is this. It is the duty of the Court to decide who is the legal representative of the deceased judgment-debtor. When an application is received from the decree-holder to place on record the legal representative of the deceased judgment-debtor, the executing Court has to issue a notice to him and decide, if necessary, whether that person is or is not the legal representative. If it decides that that person is the true legal representative when in fact he is not, that is merely a wrong decision, and the Court has jurisdiction to decide wrong as well as right. In the Privy Council case the proposed legal representative appeared in response to the notice served on him and objected to his being impleaded and the executing Court overruled his objection. In the present case, also defendant No. 1 pointed out to the executing Court that defendant No. 2 was Revanayya s legal representative and not he. After putting in a written statement to that effect he no longer took any part in the execution proceeding. Yet the executing Court held on the evidence before it, namely, the affidavit put in on behalf of the Dharwar Bank, that defendant No. 1 was Revanayya s legal representative. Whether that decision was right or wrong, the executing Court had jurisdiction to proceed with the darkhast and to bring Revanayya s property to sale.
(3.)Mr. Hungund for the appellant relied upon the ruling in Shankar Daji v. Dattatraya Vinayak (1921) I.L.R. 45 Bom, 1186 in which the Privy Council case was distinguished. But the distinction pointed out there does not help the appellant. In that case although the deceased judgment-debtor had made a will in favour of his mistress Rangutai, his brother s widow Taramati was brought on. record as his Jegal representative at the instance of the decree-holder. But there was no finding that Taramati was the legal representative of the deceased judgment-debtor. In distinguishing such a case from the decision of the Privy Council case, Shah J. observed (p. 1196):-
... .it is clear that in the execution proceedings, though a notice was served upon Taramati, she flirt not appear and there was no adjudication by the Court, right or wrong, that Taramati was the legal representative of the deceased Narayan. The sale was thus held in the absence of the true legal representative and without the necessary notice to that representative of the execution proceedings.
The effect of initiating the execution proceedings after the death of the judgment-debtor in the absence of the true legal representative and without any notice to her is that the sale is null and void and that it confers no title upon the auction purchaser.
Further on lie observed (p. 1196) :
If the person mentioned as the heir of the deceased was held in the execution proceedings to be the legal representative of the deceased, rightly or wrongly, as was the case in Malkarjun v. Narhari (1900) I.L.R. 27 Bom. 216 the question which I have just mentioned might have arisen.