Authored By : Mookerjee, Henry Reynell Holled Coxe

Mookerjee, J.

1. This is an appeal on behalf of the defendants in anaction commenced by the plaintiff-respondent for recovery of possession of landon establishment of title. The plaintiff claims as the tenant of anoccupancy-holding, which had been purchased so far back as the 9th September1893, by the decree-holder himself in execution of a decree for rent obtainedon the 10th April 1891, by one of several joint landlords in respect of theshare of rent separately payable to him The sale was confirmed on 13th November1893, and possession delivered to the purchaser on the 9th March 1895 Theplaintiff commenced this action on the 10th July 1905, to eject the defendantswho had been inducted into the land by the landlord purchaser at theexecution-sale. The defendants resisted the claim on the ground that the resultof the execution-sale was to destroy the right of the plaintiff, and thatconsequently at the date of the suit he had no subsisting title to enforce. Inreply, the plaintiff contended that the occupancy-holding claimed by him wasnon transferable and that consequently the sale in execution of the decreeobtained by one of several joint landlords could not have passed any title tothe auction-purchaser.

2. The Court of first instance decreed the suit on the groundthat as the holding was non-transferable, the title of the plaintiff had notbeen affected by the execution-sale held at the instance of one of severaljoint landlords whose decree could operate only as a money-decree. Thisdecision bas been affirm ed on appeal by the Subordinate Judge.

3. The defendants have now appealed to this Court and ontheir; behalf the decision of the Subordinate Judge has been assailed on twogrounds, namely, first, that the validity of the sale ought to be tested withreference to the law as it was understood at the time when the execution-saletook place, and secondly, that if the sale be deemed invalid, it could not betreated as a nullity, and that it must be set aside under section 244, CivilProcedure Code, before the plaintiffs could claim to recover possession fromthe defendants. In my opinion, the first of these contentions is untenable andmust be overruled, but the second is well founded and must prevail.

4. In so far as the first of these contentions is concerned,reliance has been placed by the learned Vakil for the appellant upon thedecision of the Judicial Committee in Abdul Aziz v. Appayasami: 31 I.A. 1; 27 M. 131. This case, in my opinion, is clearlydistinguishable. There the Court was called upon to interpret the effect of ajudicial sale, to determine whether the effect had been to transfer the entireinterest in the joint family property or merely the life-interest of thetemporary holder. The question was obviously one of intention; the test to beapplied was to determine what the decree-holder had intended to bring to saleand what the auction-purchaser had understood that he purchased. Under thesecircumstances, their Lordships of the Judicial Committee ruled that the Courtmust be deemed to have intended to sell, and the purchaser to buy, the right,title and interest of the judgment-debtor as then understood, namely, as onewhich ceased at the death of the debtor, and that this was so, notwithstandingthe fact that the interpretation of the law, which then prevailed, had beensubsequently overruled. This case, therefore, is not an authority for the broadproposition formulated by the learned Vakil for the appellants that thelegality of a transaction must be determined in all cases with reference to thelaw as it is understood at the time when the transaction takes place. In fact,the decision of a Full Bench of this Court in Balaram, Gantia v. Mangta Das: 34 C. 931; 6 C.L.J. 237; 11 C.W.N. 959 and the subsequentdecision of the Judicial Committee in Vasudeva Mudaliar v. Srinivasa Pillai: 30 M. 426; 17 M.L.J. 444; 11 C.W.N. 1005; 4 A.L.J. 625; 6C.L.J. 379; 2 M.L.T. 333; 9 Bom. L.R. 1104 show conclusively that such aposition cannot be maintained. Even if it is conceded, however, that thelegality of the sale in the present instance ought to be tested with referenceto the law as it was understood at the time when the sale took place in 1893,it is obvious that there is no foundation for the suggestion made by thelearned Vakil for the appellants that the law as understood at that time wasdifferent from what is now accepted as the law. It is obvious from the decisionin Beni Madhub Roy v. Jaod Ali Sircar : 17 C. 390 that asearly as 1890, it was well-understood that the effect of a decree obtained byone of several joint landlords for the share of rent separately payable to himwas different from the effect of decree obtained by the entire body oflandlords for the whole rent payable by the tenants. It is also clear from thedecision in Bhiram Ali Shaik Sikdar v. Gopi Kanth Shaha : 24C. 355; 1 C.W.N. 396, which was based upon the decision of the Full Bench inNurendro Narain Roy v. Ishan Chunder Sen 22 W.R. 22, that as early as 1896 itwas accepted as settled law that a holding which was not transferable by customor usage could not be validly sold in execution of a money-decree. It cannotconsequently be suggested that when it was affirmed by this Court in 1899 in thecase of Sadagar Sircar v. Krishna Chandra Nath : 26 C. 937; 3C.W.N. 742 that a non-transferable occupancy-holding could not be sold at theinstance of a landlord who had obtained a decree for rent for his share only,any new principle of law was enunciated. The decision in Sadagar Sircar v.Krishna Chandra Nath : 26 C. 937; 3 C.W.N. 742 is, in fact, alogical sequence of the earlier decisions to which reference has been made.[Afraz Molla v. Kulsumunnessa Bibee : 4 C L.J. 68; 10 C.W.N.176]. It cannot, therefore, be seriously suggested that in 1893, when the saletook place, the law was understood differently from what is now accepted as thelaw. The first contention of the appellant consequently fails.

5. In so far as the second contention advanced on behalf ofthe appellant is concerned, it has been argued upon the authority of thedecision in Durga Charan Mandal v. Kali Frosanna Sarkar : 26C 727; 3 C.W.N. 586 and Sheikh Murullah v. Sheikh Burullah :9 C W.N. 972, that a sale in execution of a decree by one of several jointlandlords for his share of the rent is not necessarily a nullity, Thosedecisions show that the sale of a nontransferable holding in execution of sucha decree is a voidable sale which may be annulled if proceedings are taken inthat behalf under section 244, Civil Procedure Code; in other words, till thesale has been successfully impeached by appropriate proceedings, it must betreated as a valid sale. This view is also supported by the decision of a FullBench of this Court in Ashutosh Sikdar v. Behari Lal Kirtania : 35 C. 61; 11 C.W.N. 1011; 6 C.L.J. 320. There the question was raised whetheran execution sale held in contravention of the provisions of section 99 of theTransfer of Property Act was a nullity. It was argued that a sale incontravention of an express statutory provision must be treated as ipso factovoid, and that it was superfluous to take any proceedings to cancel it; inother words, that the judgment-debtor was entitled to ignore the sale as if ithad never taken place. This contention was overruled by the Full Bench, and itwas laid down that a sale so held was merely voidable and could remain in fullforce till avoided by appropriate proceedings. Proceedings for reversal of thesale have to be taken, in any event, before the confirmation, if thejudgment-debtor is aware that the sale has taken place; and objection must betaken before the sale itself if the judgment-debtor is aware of the attachmentand the issue of sale proclamation, [Marid Hossein v. Raghubur Chowdhury 27 C.187] If the judgment-debtor is not aware of the sale before it has beenconfirmed, be may apply under section 244, Civil Procedure Code, as soon as heis apprised of the sale, and may, if a proper case is made out, avail himselfof the benefit of section 18 of the Limitation Act. But, it has been argued bythe learned Vakil for the respondent, that the decision in Peary Mohan Mukerjeev. Jote Kumar Mokerjee : 11 C.W.N 83, shows that a sale of anon-transferable holding in execution of a money-decree is a nullity. Anexamination of the judgment in the case mentioned, however, shows that itcannot be treated as an authority for any such comprehensive proposition. Therethe validity of the execution sale was challenged in the course of proceedingsunder section 244, Civil Procedure Code. Although, therefore, the learnedJudges observed that the sale of a non-transferable holding did not pass anytitle to the purchaser, they could not be held to have decided that the salewas a nullity and needed not to be impeached by appropriate proceedings undersection 241. It is needless, for our present purposes, to consider what the positionwould be if the judgment-debtor, in spite of the sale, continues in possessionand is sued in ejectment by the auction purchaser. It is sufficient to observethat there is divergence of judicial opinion upon this point. The cases ofBhiram Ali v. Gopi Kant Shaha 24 C. 355; 1 C.W.N. 396, Chandra now v.Halijennessa 9 C.L.J. 464, 4 Ind. Cas. 168 [LQ/CalHC/1908/141] and Durga Charan v. Karamat Khan: 7 C.W.N. 607 affirm, the proposition that an objection tothe validity of an execution sale may be raised by way of defence in a regularsuit, although the objection is one within the scope of section 244 CivilProcedure Code, which accords with the view taken in Thathu Naick v. KonduReddi : 32 M. 242; 5 M L.T. 248; 1 Ind. Cas 221 [LQ/MadHC/1909/8] and VenkataramanaChariar v. Meenat chisundarar amaiyer 19 M L J. 1; 4 M.L.T. 285; 1 Ind. Cas.931. On the other hand, the cases of Dwarka Nath Pal v. Tarini Sankar Roy: 34 C. 199; 11 C.W.N. 513; 5 C.L.J. 294; Durga Charan v.Kali Prasanna : 26 C 727; 3 C.W.N. 586 and Murulla v. Burulla: 9 C W.N. 972 support the view that the validity of the salecannot be impeached collaterally, which accords with the principle recognisedin Nemagauda v. Paresha 22 B. 640, Surnamoyi Dasi v. Ashutosh Goswami: 27 C. 714 and Bastiram v. Futtu 8 A. 146. But whatevercontroversy there may be as to the position of the judgment, debtor, when hehappens to be the defendant, there is no room for reasonable doubt that when hesues the auction-purchaser in ejectment he cannot ignore the sale as a nullity.It is clear, therefore, that the plaintiff in the case before us, is notentitled to recover possession before he has got the sale annulled by aproceeding under section 244, Civil Procedure Code.

6. It has, however, been mentioned to us that the Court inwhich the present suit was commenced was the Court in which the executionproceedings took place, and that consequently the plaint in this case might betreated as an application under section 244, Civil Procedure Code, on theauthority of the decision in Azizuddin Hossein v. Ramanugra Roy: 14 C. 605, the principle whereof has now receivedlegislative recognition in section 47 of the Code of 1908. Effect mightpossibly have been given to this contention and the case remanded fordetermination of the precise point of time when the plaintiff first becameaware of the sale, had it not been that such a course is bound to proveinfructuous for an obvious reason. It is clear that it the plaint is treated asan application under section 244 and an attempt is now made to have the saleannulled, the proceeding must take place in the presence of the landlord decreeholder. The landlord, however, is not a party to the suit, and if he is nowsought to be added as a party, the proceeding, would be successfully met by theplea of limitation; for, inasmuch as these proceedings were commenced so farback as the 10th July 1905, if the landlord is now brought on the record, hewould be entitled to resist the application on the ground that, in so far as hewas concerned, the proceeding was commenced on the date when he was made aparty. In this view, the proceeding would be plainly barred by limitation. Noadvantage, therefore, can possibly accrue to the plaintiff by a remand.

7. The result, therefore, is that this appeal is allowed,the decree of the Court below set aside and the suit dismissed.

8. As, however, the objection upon which the suit has failedwas not formulated in the Court below precisely in the form in which it hasbeen presented here, each party will bear his own costs throughout thelitigation.

Henry Reynell Holled Coxe, J.

9. On the first point I agree. On the second I think that weare bound by the decisions in Sheikh Murulla v. Sheikh Burulla: 9 C W.N. 972; Durga Charan Mandul v. Kali Prasanna Sarkar: 26 C 727;3 C.W.N. 586, Majid Hussain v. Raghubar 27 C 187(18) 11 C.W.N. 83, and even in Peary Mohan Mukerjee v. Jote Kumar Mukerjee: 11 C.W.N. 83, cited by my learned brother, to hold that anobjection by an occupancy ryot that his holding was not saleable in executionof a money-decree, came within the scope of section 244 of the Civil ProcedureCode, 1882, and could not, therefore, be decided by a separate suit, in whichthe raising of the objection was by the plaintiff. Although the Munsif hasfound that the sale was obtained without the knowledge of the plaintiff, hedoes not find that either the decree or the sale was obtained by fraud. Inthese circumstances, I agree that the suit must fail.

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