Madras High Court
Samandan Karkat Edathil Rayarappan ... vs Malikandi Aketh Mayan on 29 January, 1914
Equivalent citations: (1914)26MLJ267, AIR 1914 MADRAS 297(2)
JUDGMENT
1. The plaintiff in O.S. No. 590 of 1903 obtained a decree on his hypothecation deed for the sale of the properties mortgaged against the mortgagor and the appellant's predecessor-in-title who was a puisne mortgagee. The puisne mortgagee purchased the mortgagor's interest in a Judicial sale in execution of a decree obtained by him to which the plaintiff was a party. The mortgagee-judgment-debtor in O.S. No. 590 of 1903 died and without bringing his representatives on record the plaintiff got the properties sold in execution of his decree. The appellant now applies in effect to be made a party and to set aside the sale on payment to the plaintiff of the amount due to him under the decree. He also alleged fraud. The Lower Courts hold that the application is barred by limitation. If the sale is a nullity so far as he is concerned, then the application is clearly not barred. According to the decisions of this Court, Ramasami v. Bagirathi (1883) I.L.R. 6 M. 180 Krishnayya v. Unnissa Begam (1891) I.L.R. 15 M. 399 and Groves v. Administrator-General (1891) I.L.R. 22 Mad. 119 the omission to bring the representatives on record is not a mere irregularity. It renders the sale a nullity against the representatives of the judgment-debtor. But it is contended that these decisions have been overruled by the Privy Council, See Malkarjun v. Narhari (1900) I.L.R. 25 B. 337. In that case however there was an order passed by the Court executing the decree directing a person to be brought on record as the representative of the deceased judgment debtor. The fact that the decision was afterwards found to be erroneous and the true representatives were not brought on record was held not to be sufficient to set aside the sale against a bona fide purchaser. See Khiarajmal v. Daim (1904) I.L.R. 32 C. 296 at 315 (P.C.). In this case it may also be pointed out that the decree holder was the purchaser and he had notice of the death of his judgment debtor. We are therefore unable to hold that the Madras Cases are no longer of any authority.
2. The appellant therefore will be placed on record as the representative of his Karnavan and on payment of the amount due to the decree holder, the sale will be set aside. The appellant is entitled to the costs in this and the Lower Appellate Court. The Costs in the first Court will be provided for in the final order.