Andhra HC (Pre-Telangana)
Arya Peddakka And Ors. vs Jangiti Bala Thimmaiah And Anr. on 23 September, 1996
Equivalent citations: 1996(4)ALT71
Author: K.B. Siddappa
Bench: K.B. Siddappa
ORDER K.B. Siddappa, J.
1. This Revision is filed against the order in CFR 167/1991 in EA 85/90 in EP 84/87 in O.S. 95/81 dated 26-03-1991 on the file of the District Munsif, Koilkuntla.
2. In this case, sale was held on 7-6-1990. EA. 95/90 was filed to set aside the sale. EA was dismissed for defaulton 23-1-1991. Against this, petition was filed on 11-2-1991. The sale was confirmed on 23-1-1991. In these circumstances, the lower Court held that the petition is not maintainable. Aggrieved by the said order the present revision is filed.
3. In this case, the sale was posted to 24-4-90. The sale was stopped, because the Judgment Debtor wanted adjournment and the sale was posted to 7-6-1990. Proclamation was made on 11-5-90. Publication in the local daily was also made on 27-5-1990. Even before the proclamation, the Judgment Debtor died on 1-5-90. It is submitted that the decree holder ought to have brought the LRs. of the J.Dr. on record. This is not done in this case. Therefore, the sale held on 7-6-90 which was confirmed on 23-01-1991 is void as the LRs were not brought on record. In support of this contention, he relied upon a Full Bench Judgment of Calcutta High Court reported in Smt. Shanti Devi (Minor) v. Khandubala Dasi, (F.B.). In this case it was held that "it makes no difference to the validity of the sale that the Judgment-debtor died after the issue and publication of the sale proclamation. The crucial date is the date of the sale. The sale is a process in execution of the decree and if the decree-holder wishes to execute that process, Section 50 applies and the decree holder must lawfully execute the decree against the representative".
4. He also relied upon the Judgment of Madras High Court reported in Kanchamalai v. Shahaji Rajah, AIR 1936 Madras 205. In this case the Judgment Debtor died during execution. In those circumstances, it was held that:
"there should be either fresh execution application against legal representative or legal representatives would be brought on record and that the permissive in Section 50 CPC does not mean that Section is not obligatory, and if execution is sought against the legal representatives, the decree holder has no option but to proceed under Section 50 in such case notice must issue to the LR under Order 21 Rule 22(2) is obligatory".
5. This Judgment was followed by the Honourable Mr, Justice K. Ramaswamy in N. Laxmi v. K. Raghava Reddy and others, 1989 (3) ALT 147 = 1989 Law Summary 272.
6. In view of the settled principles of law on these aspects, the execution proceedings against the dead person are null and void. In this case, proclamation was done on 11-5-1990. Even prior to that, the J.Dr. died on 1-5-1990. Irrespective of that, execution proceedings were continued and the sale was held on 7-6-90. Subsequently the sale was confirmed on 23-1-1991. Therefore, the entire proceedings are non est for want of notice to the L.Rs. The sale cannot be held valid without bringing the L.Rs. on record. Therefore, the sale is not valid, the order under revision is set aside. C.R.P. is allowed without costs.