Decided on September 15,1960



Bachawat, J. - (1.) One Bholanath Dutta and his wife, Chintamani Dassi, jointly executed a mortgage of the disputed plot of land, known as Nimasol Nishkar, as also of other plots of land in favour of one Chand Keyot. On the death of Chand Keyot, his three sons, Gangadhar, Jamuna and Padma instituted a suit against both Bholanath and Chintamani and obtained a final decree for sale of all the mortgaged properties. On July 19, 1933, the decree-holders put the final decree into execution and commenced Title Execution Case No. 1526 of 1933 against both Bholanath and Chintamani. The sale proclamation was issued on October 25, 1933 and published on November 13, 1933. Chintamani died on November 27, 1933. All the mortgaged properties were sold at the Court sale on December 22, 1933 and purchased by the three decree-holders. The sale was confirmed on May 1, 1937. Chintamani was the sole owner of the disputed plot of land. She left behind her three sons as heirs and legal representatives. In spite of her death, her representatives were not brought on the record of the execution case. The decree-holders did not apply under Section 50, C. P. C., to execute the decree against her representatives. No notice was issued to her legal representatives under Order 21, Rule 22(1)(b), C. P. C., nor was any order made by the Court for executing the decree against them. The Court which passed the decree was also the executing Court. Bholanath was alive during the pendency of the execution proceedings. He was not the owner of the disputed plot of land nor was he a legal representative of Chintamani. Bholanath was the owner of the other mortgaged properties. The sons of Chintamani sold and conveyed the disputed plot of land to the defendant No. 1 by a registered kobala dated July 28, 1939. In spite of the Court sale, the sons of Chintamani and subsequently the defendant No. 1 continued to be in possession of the disputed plot of land. The plaintiff purchased the alleged two-thirds share of the auction purchasers, Jamuna and Padma, in the disputed plot of Land by a kobala dated November 10, 1937 and the remaining one-third share of Gangadhar therein in a court sale on June 11, 1938. The Courts below have found that the plaintiff is a mala fide purchaser. The plaintiff instituted the present suit in 1944 for a declaration of her title to the ownership of the disputed plot of land and for recovery of khas possession thereof. The defendant No. 1 and her lessee, the defendant No. 7 contested the suit. Their principal defence is that since Chintamani died before the court sale in Title Execution Case No. 1526 of 1833, the title of the heirs of Chintamani to the disputed plot of land did not pass at the court sale and consequently the auction purchasers and the plaintiff claiming through them did not acquire any title to the ownership of the disputed property. Both the Courts below accepted this defence contention and dismissed the suit. The plaintiff has preferred this second appeal to this Court. The principal question in the appeal is whether a court sale of a mortgaged property in execution of a final decree for sale thereof held after the death of the judgment-debtor without impleading her heirs is binding upon the heirs where the sale proclamation was issued and published before the death of the judgment-debtor. The Division Bench thought that there is a conflict of judicial opinion on the point and accordingly referred the following questions to the Full Bench for decision: "What is the effect of the death of a judgment-debtor after the issue of a sale proclamation on the validity of the sale held thereafter without impleading the heirs of the deceased judgment-debtors? "
(2.) "Which of the two cases -- Tarangini Devi v. Raj Krishna Mandal, 32 Cal WN 418 or Faizaddi Taluqdar v. Rezia Begum, 46 Cal WN 631: (AIR 1942 Cal 436) --is correctly decided?" 2. As the questions arose in an appeal from an appellate decree the whole case has been referred to the Full Bench under Ch. VII, Rule 2 of the Appellate Side Rules.
(3.) On behalf of the plaintiff-appellant Mr. Sen contended firstly, that a sale in execution of a decree held in West Bengal after the death of the judgment-debtor without impleading his legal representative as a party to the execution proceedings binds the representative in view of the amendment of Rule 22 of Order 21, C. P. C. by the Calcutta High Court. Secondly, he contended relying upon the decision in Sheo Prosad v. Hiralat, ILR 12 All 440, and the cases which followed it, that such a sale is valid where the property was attached and ordered to be sold in execution of a money decree during the life time of the judgment-debtor and also where the property being mortgaged a final decree for its sale was passed during his life time. Thirdly, he contended that in any event such a sale is valid where the sale proclamation was issued and published before the death of the judgment-debtor. In my opinion each of these contentions should be rejected.;

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