Authored By : Trevelyan, Beverley

Trevelyan and Beverley, JJ.

1. The respondents in this case are two out of severaljudgment-debtors against whom a mortgage decree was made on 2nd June 1893. Inthat decree the judgment-debtor No. 8 was one Mussummat Makhduman, nika wife ofHalim Chowdhry, deceased, and Nos. 9 and 10 were the two respondents, KarimBuksh and Mussummat Jaigia, who were described as minors under the guardianshipof the said Mussummat Makhduman.

2. The decree having been made absolute on 29th July 1893,an order for sale of the mortgaged properties was made on 5th August, but onpayment of part of the money due the sale was stayed, and the execution of thedecree remained in abeyance. The balance of the decretal money not having beenpaid, the decree-holder on 25th June 1894 made a fresh application for sale,the judgment-debtors being described as in the decree and the formerapplication. Meanwhile on 24th November 1893 Mussummat Makhduman had died, andno steps were taken either to substitute her legal representative on the record,or to appoint another guardian ad litem for the minors. The sale having takenplace on the 7th August 1894, some of the other judgment-debtors applied on 3rdSeptember to have the sale set aside under the provisions of Section 310A ofthe Code of Civil Procedure, and that application having been disallowed on the5th September, the present respondents on the following day, 6th September,preferred the present application under the provisions of Section 311 of theCode. The application was based on several grounds which are considered atlength in the order of the Subordinate Judge, by which he set aside the sale.

3. One of those grounds was that Mussummat Makhduman, whowas, as already stated, one of the judgment-debtors under the decree, had died afterthe order for sale had been made, and that no one had been substituted asjudgment-debtor in her place, nor had any fresh guardian ad litem beenappointed for Mussummat Jaigia, who is admittedly a minor. Another ground wasthat the respondent Karim Baksh had been described in the proceedingsthroughout as a minor, although it was proved as a matter of fact that he wasforty-five years of age. The learned Subordinate Judge also held that the salewas not duly published as provided by Sections 274 and 289 of the Code of CivilProcedure, and that the omission in the sale proclamation of the abwabs whichwere leviable in the bazaar sold was a serious omission. He also held thatsubstantial loss had occurred to the judgment-debtors by the sale, and that suchloss was entirely due to these irregularities.

4. As regards the first ground taken by the learnedSubordinate Judge, it has been contended before us that so far from the salebeing void, because Makhduman was dead at the time the property was sold and thatno one had been put on the record in her place, the omission was not even anirregularity, but that the order for sale made during her life-time fixed uponthe Court the responsibility of selling, and that no further proceeding wasnecessary at the instance of the judgment-creditors. In support of thiscontention Mr. Woodroffe relied on the Full Bench decision in Sheo Prasad v.Hira Lall I.L.R. 12 All. 440 which was followed by the Bombay High Court in thecase of Aba v. Dhonu Bai I.L.R. 19 Bom. 276. On the other hand, a differentview was taken in the case of Knshnayya v. Unnessa Begam I.L.R. 15 Mad. 399,hut in that case the Full Bench decision of the Allahabad Court was notconsidered. The case of Romeshurry Dasi v. Durga Dass Chatterjee 7 C.L.R. 85 alsogoes to support the contention that the omission to place the heir of Makhdumanon the record would affect the regularity of the proceedings, but that case wasdecided upon a peculiar state of circumstances, and the sale was really setaside, because the process of the Court had been abused. We are of opinion thatthe omission did not vitiate the sale, but was at most an irregularity. Theorder for sale was made, and the former execution proceedings were taken, inthe life-time of Makhduman. Her heirs appear to be also parties to the decree,and had they wished to satisfy the decree and save the property from sale(which, however, is not alleged), it was open to them to do so.

5. The absence of a guardian ad litem for Jaigia stands uponthe same footing. The order for sale having been made when she was properlyrepresented, it was binding upon her and if there had been any wish to satisfythe decree on her behalf, she could have applied to do so through a nextfriend, as in fact she has preferred the present appeal. Nor are we prepared tosay that the description of Karim Buksh as a minor in any way affects thevalidity of the proceedings. This description may, indeed, be treated assurplusage, as was done in the case of Taqui Jan v. Obaidulla I.L.R. 21 Cal.866. Karim Buksh now states that he never had any notice of the Suit, but theSubordinate Judge has not gone into that question, and we think that we cannotin an application under Section 311 of the Code go behind the decree andenquire as to whether or not he was served with a summons in the original suit.

6. The proceeding, which the law provides for relieving aperson not served with a summons from the liability of a decree, is to-be foundin Section 108 of the Civil Procedure Code. A proceeding under Section 311must, we think, assume the regularity of the decree in execution of which theproperty has been sold. But whether that is so or not, we think that it isunder Section 108 only that Karim Buksh is entitled to put forward anyirregularity which he says was caused by his being described as a minor. Buteven assuming that the matters abovementioned were irregularities, they donot, in our opinion, justify the order setting aside the sale, inasmuch as weare not satisfied that the judgment-debtors have suffered any substantial lossby the sale.

7. Their Lordships then dealt with the evidence, and came tothe conclusion that the judgment-debtors did not sustain any substantial lossin consequence of the sale, and set aside the order of the Court below, anddirected that the application under Section 311 be dismissed with costs.

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Net Lall Sahoo and Ors. vs. Sheikh Kareem Bux and Ors.(10.03.1896 - CALHC)