Kulwant Sahay, J.This is an appeal on behalf of the plaintiffs against the decision of the Subordinate Judge of Saran reversing the decision of the Munsif of Chapra and dismissing the plaintiffs suit.

2. The facts of the case are shortly these:

3. One Nawrang Lal had a holding of 11 bighas odd in village Kolhua. He died leaving the plaintiffs and the defendants Nos. 2 and 3 as his heirs. In execution of a decree for rent obtained against Nawrang Lal the holding was sold on the 19th of November 1908 and purchased by the defendant No. 1. The learned Subordinate Judge has found that after execution had been taken out and the property attached, Nawrang Lal died on the 18th of June 1908 about five months before the auction-sale. His heirs, however, were not brought on the record in the execution proceedings and the execution proceeded in the name of the deceased judgment-debtor. The plaintiffs case is that they and the defendants Nos. 2 and 3 came into possession of the holding in dispute after the death of Nawrang Lal and have continued in possession; but that in the Revisional Survey the defendant No. 1 got his name recorded in respect of the lands in dispute by virtue of his auction-purchase in the execution-sale. The plaintiffs allege that the decree was fraudulent, that all processes in execution were suppressed, and, that, therefore, the defendant No. 1 did not acquire any title to the land by virtue of his purchase. The plaintiffs accordingly instituted the present suit on the 3rd of December 1920 for a declaration that the defendant No. 1 had no title to the land and for confirmation of possession or, in the alternative, for recovery of possession.

4. Various pleas were taken by the defendant No. 1 In answer to the suit; but the principal defence was that Nawrang Lal was alive at the time of the execution; that he purchased the suit land for proper value; that the plaintiffs were not in possession of the disputed lands on the death of Nawrang Lal; and, that the suit was barred by limitation.

5. The learned Munsif held that Nawrang Lal died on the 18th of June 1908, long before the sale took place, that no attachment or any other process in execution was issued or served in the lifetime of Nawrang Lal, and that the sale was brought about by fraud. He accordingly, decreed the suit.

6. On appeal the learned Subordinate Judge has found that, although Nawrang Lal died on the 18th of June 1908 yet the processes were duly issued and the property was attached and sale-proclamation was served during his life time; that there was no fraud in the execution-proceedings; that the plaintiffs were never in possession of the disputed holding; and that the defendant No. 1 is in possession since he took delivery of possession in 1909. He further held that the failure to bring the heirs of Nawrang Lal on the record in the execution proceedings after his death only amounted to an irregularity and did not render the sale null and void and, that, the plaintiffs could not succeed without taking proper steps to set aside the sale and as their remedy to have the sale set aside either by suit or by proceedings under Order XXI, Rule 90 was barred by limitation they could not succeed in the present action. The Subordinate Judge, accordingly, dismissed the suit.

7. On second appeal the points raised by the learned Vakil for the appellants are that the finding of the learned Subordinate Judge that attachment and sale proclamation were served in the life time of Nawrang Lal is not a legal finding on a consideration of the evidence and, secondly, that the sale without bringing the heirs of Nawrang Lal on the record was null and void end it was not necessary to have it set aside before the plaintiffs could succeed in their action to recover possession of the property.

8. As regards the first point, it is clear that the finding of the learned Subordinate Judge that attachment was served in the lifetime of Nawrang Lal is a finding based on a consideration of the evidence in the case. No doubt, the First Court came to a different finding and the learned Subordinate Judge does not discuss the evidence on this point. But it appears on a reference to the judgment of the Munsif that the only evidence on the point consisted of the depositions of certain witnesses on both sides, and while the Munsif believed the plaintiffs witnesses and disbelieved the defendants witnesses, the Subordinate Judge on appeal believed the defendants witnesses and found that the attachment was served in the life-time of. Nawrang Lal. This is a finding of fact upon the evidence and cannot be questioned in second appeal.

9. The second point raises a question of law. The contention of the learned Vakil for the appellants is that on the date of the sale the property had vested in the plaintiffs and the other heirs of Nawrang Lal and, that, as these heirs were not brought on the record, the sale was a nullity; and he relies upon the decision of the Madras High Court in Ramasami Ayyangar v. Bagirathi Ammal 6 M. 180 : 2 Ind. Dec 404 and Groves v. Administrator-General of Madras 22 M. 119 : 8 M.L.J. 288 : 8 Ind. Dec. 84. He also relies upon the decision of the Judicial Committee of the Privy Council in the case of Khiarajmal v. Daim 32 C. 296 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 1 C.L.J. 584 : 32 I.A. 23 : 8 Sar. P.C.J. 734 (P.C.). Reliance has, on the other hand, been placed by the learned Vakil for the respondents upon the Full Bench decision of the Allahabad High Court in Sheo Prasad v. Hira Lal 12 A. 440 : A.W.N. (1890) 103 : 6. Ind. Dec. 1026 and upon the decision of a Division Bench of the Calcutta High Court in Bepin Behari Bera v. Shashi Bhushan Datta 22 Ind. Cas. 95 : 18 C.W.N. 766 : 18 C.L.J. 628. After a careful consideration of the authorities, I am of opinion that the view taken by the learned Subordinate Judge is correct and there is no substance in the argument of the learned Vakil for the appellants. No doubt, the two Madras cases referred to above held that a sale held after the death of the judgment-debtor without making his representatives parties to the proceedings would be illegal even if the land had been attached before the death of the judgment debtor. But those were cases for setting aside the sale and, although it was held in those cases that the sale was illegal, it must be held that the question was considered in connection with proceedings taken to set aside the sale. What was decided in those cases was that the failure to bring his heirs on the record after the death of the judgment-debtor was a good ground for setting aside the sale. Those two cases are not authority for the proposition that the sale was absolutely null and void. In the case of Khiarajmal v. Daim 32 C. 296 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 1 C.L.J. 584 : 32 I.A. 23 : 8 Sar. P.C.J. 734 (P.C.) the decree was passed in the absence of the legal representatives. Lord Davey in delivering the judgment of the Board observed that their Lordships thought that the estate of Naurez was not represented in law or in fact in either of the suits, and the sale of his property was, therefore, without jurisdiction and null and void. This case is no authority for the proposition that the sale would be null and void if the decree was properly obtained against the judgment-debtor and the judgment-debtor died after execution had been taken out and his property attached before the sale in the absence of his legal representatives. On the other hand, in the well known case of Malkarjun v. Narhari 25 B. 337 : 5 C.W.N. 10 : 10 M.L.J. 358 : 2 Bom. L.R. 927 : 27 I.A. 216 : 7 Sar. P.C.J. 739 (P.C.) Lord Hobhouse observed that there can be no question that omission to serve notice on the legal representative is a serious irregularity, sufficient by itself to entitle the plaintiff to vacate the sale. The view taken, therefore, by the Judicial Committee in the latter case was that the omission to serve the notice on the legal representative only amounted to an irregularity and did not render the sale invalid and null and void, and that such sale had to be vacated in one or other of the modes prescribed by law. This case was followed by this Court in Syed Muhammad Rafi v. Syed Muhammad Askari 37 Ind. Cas. 433 : 1 P.L.J. 261 : 3 P.L.W. 390 where Mullick, J., distinguished the case of Khiarajmal v. Daim 32 C. 296 : 9 C.W.N. 201 : 2 A.L.J. 71 : 7 Bom. L.R. 1 : 1 C.L.J. 584 : 32 I.A. 23 : 8 Sar. P.C.J. 734 (P.C.) with the observation that the reason of the decision in that case was that the person whose property was sold was not at all a party to the suit and their Lordships of the Privy Council observed that a sale held in execution of a decree in a suit not properly constituted is not voidable but is a nullity. In Bepin Behari Bera v. Sasi Bhushan Datta 22 Ind. Cas. 95 : 18 C.W.N. 766 : 18 C.L.J. 628 Mookerjee and Beach croft JJ., considered the Madras cases and the other cases dealing on the point and came to the conclusion that the decision of the Full Bench in Sheo Prasad v. Hira Lal 12 A. 440 : A.W.N. (1890) 103 : 6. Ind. Dec 1026 was good law and that the effect of the omission of the Court to bring on the record the legal representatives of the judgment-debtor who had died after attachment and before sale amounted to irregularity and did not necessarily invalidate the sale, although upon appropriate proceedings taken the sale may be set aside. This case was followed in a subsequent Calcutta case in Jagadish Bhattacharjee v. Rama Sundari Dasya 51 Ind. 972 : 23 C.W.N. 608 : 29 C.L.J. 411. In my opinion this is the correct view of the case and I agree with the learned Subordinate Judge that the failure to bring the legal representatives of the judgment-debtor on the record did not make the sale null and void. It only amounted to an irregularity which would have entitled the plaintiffs to have the sale set aside if they had taken proper steps within the period of limitation prescribed by the Statute. They having failed to do so, it is not open to them to question the title of the defendant No. 1 in the present action.

10. In my opinion the suit was properly dismissed and this appeal must be dismissed with costs.

Ross, J.

11. I agree.