Ram Chandra Arya Vs. Man Singh & ANR
 INSC 293 (8 December 1967)
08/12/1967 BHARGAVA, VISHISHTHA BHARGAVA,
VISHISHTHA SHAH, J.C.
CITATION: 1968 AIR 954 1968 SCR (2) 572
Code of Civil Procedure (Act 5 of 1908), O.
35, r. 15-Suit against lunatic without appointment of a guardian-ad-litem-
Decree in suit whether a nullity-Sale in execution of such decree whether void.
An ex-parte decree was passed against R in a
money suit and in execution thereof his house was sold. It was purchased by the
appellant's father. Formal possession was given to the purchaser but R
continued to reside in the house till his death in 1945. As he died without
heirs the Maharaja of Jaipur whose subject he was took possession of the house.
The appellant's father then filed a suit for
the possession of the house. The suit was contested on the ground that R was a
lunatic and since the earlier suit had been instituted against him without
appointment of a guardian-ad-litem, the decree in that suit was a nullity and
the execution sale void. This defence was accepted by the trial court, the
first appellate court, and the High Court. By special leave the appellant came
to this Court.
HELD : It is a well-settled principle that if
a decree is passed against a minor without appointment of a guardian, the
decree is a nullity and is void and not merely voidable.
This principle becomes applicable to the case
of a lunatic in view of r. 15 of 0.32 of the Code of Civil Procedure, so that
the decree obtained against R was a decree which had to treated as without
jurisdiction and void. [574 A-B] A sale is void ab initio if it is held in
execution of a decree which 'is a nullity and, consequently, to be treated as
non-existent. In the present case therefore no rights could be acquired by the
purchaser when he purported to purchase the house in execution of the decree
against R. [576 B] R having died without leaving any heir, the property
naturally passed by escheat to the Maharaja of Jaipur. That principle is
clearly recognised in Hindu law. [576 C] Janak Rai v. Gurdial Singh & Anr.
 2 S.C.R. 77, Khiarajmal & Ors. v. Daim & Ors. 32 I.A. 23 and
Malkarjun v. Narhari, 27 I.A. 216, referred to.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 379 of 1965.
Appeal by special leave from the judgment and
decree dated December 21, 1961 of the Allahabad High Co-,lit in Second Appeal
No. 920 of 1952.
J. P. Goyal and Sobhagmal fain, for the
S. P. Sinha and M. 1. Khowaja, for the
573 The Judgment of the Court was delivered
by Bhargava, J.
This appeal arises out of a suit for
possession of 11th January, 1939, one Ram Das filed suit No. 354 of 1939
against Ram Lal in the Court of Judge, Small Causes, for recovery of a sum of
Rs. 144/-. That suit was later transferred to the court of the Munsif and an ex
parte decree in that suit was passed on 27th March, 1939, after the Court held
that Ram Lal had been sufficiently served. In execution of that decree, the
house was sold and the sale certificate was issued on 21st January, 1941 in
favour of Prabhu Dayal, the father of the appellant in this appeal.
Formal delivery of possession was taken and
the certificate of delivery of sale is dated 15th May, 1941. Admmittedly ,Ram
Lal continued to live in the house even thereafter, and on 19th September,
1945, he died leaving no heir. Ram Lal was a subject of the Maharaja of Jaipur
and, on Ram Lal's death, the servants of the Maharaja took possession of the
house on 20th September, 1945.
Thereupon, suit No. 552 of 1946 was filed by
Prabhu Dayal,the father of the appellant, for possession of the house on 10th
July, 1946. The suit was contested on the ground that Ram Lal was a lunatic and
the earlier suit No.
354 of 1939 had been instituted against Ram
Lal without appointment of a guardian-ad-litem, so that the decree in the suit
was a nullity. The sale in execution of that decree was also, therefore,
challenged as void. This defence was accepted by the trial Court and the suit
was dismissed on 24th January, 1950. The first appellate Court also upheld that
decision. The second appeal came before a learned single Judge of the Allahabad
High Court who referred it to a Division Bench as, in his opinion, the case
involved an important question of law. The Bench of the High Court confirmed
the decisions of the lower Courts and, consequently, the appellant has now come
up to this Court by special leave.
As has been mentioned above, the suit was
dismissed by the trial Court and that decision has been upheld by the first and
the second appellate Courts on the ground that the decree against Ram Lal -was
a nullity and the sale held in execution of that decree was, therefore, void.
It appears from *he judgment of the High Court that, in that Court, no attempt
was made on behalf. of the appellant to contend that the decree which was
obtained against Ram Lal and in execution of which the house was sold was not
null and void and was not a nullity. On the face of it, the decree was passed
in contravention of the provisions of 0. 32 r. 15 of the Code of Civil
Procedure. It has been found as a fact that Ram Lal was insane when suit No.
354 of 1939 was instituted as well as when the house was sold in execution of
the 574 decree passed in that suit. It is now a well-settled principle that, if
a decree is passed against a minor without appointment of a guardian, the
decree is a nullity and is void and not merely voidable. This principle becomes
applicable to the case of a lunatic in view of r. 15 of 0.
32 of the Code of Civil Procedure, so That
the decree obtained against Ram Lal was a decree which has to be treated as
without jurisdiction and void. In these circum- stances, the sale held in
execution of that decree must also be held to be void.
Learned counsel appearing on behalf of the
appellant contended that this proposition should not be accepted by us in view
of the decision of this Court in Janak Rai v. Gurdial Singh and Another(1). The
decision of that case is, however, not applicable to the case before us at all.
In that case, a stranger to the suit was the auction-purchaser of the
judgment-debtor's immovable property in execution of an ex parte money decree.
Before the sale could be affirmed, the ex parte decree was set aside and the
question arose whether the auction-purchaser was entitled to a con- firmation
of the sale under 0. 21, r. 92, C.P.C. The Court held that the sale should be
confirmed. The law makes ample provision for the protection of the interests of
the judgment-debtor, when his property is sold in execution. He can file an
application for setting aside the sale under the provisions of 0. 21, rr. 89
and 90, C.P.C. If no such application was made, or when such an application was
made and disallowed, the Court has no choice but to confirm the sale. This
principle can be of no assistance to the appellant in the present case,
because, in that case, when the sale-was actually held, a valid ex parte decree
did exist. The sale, having been held in execution of a valid existing decree,
was itself valid; and the only question that came up for decision was whether
such a valid sale could be set aside otherwise than by resort to the provisions
of rr. 89 and 90 of 0. 21, C.P.C. In the present case, the decree, being a
nullity, has to be treated as non- est and, consequently, the sale, when he-Id,
was void ab initio. In such a case, there is no question of any party having to
resort to the provisions of rr. 89 and 90 of 0.
21, C.P.C. to have the sale set aside. Any
claim based on a void sale can be resisted without having that sale, set aside.
The decision of this Court in that case itself brings out this distinction by
"It is to be noted however that there
may be cases in which, apart from the provisions of rr. 89 to 91, the court may
refuse to confirm a sale, as, for instance, where a sale is held without giving
notice to the judgmen t-debtor, or where the court is misled in fixing the
reserve price or when there was no decree in existence at the time when the
sale was held." (1)  2 S.C.R. 77.
575 This Court, thus, in that case, clearly
recognised that, if there be no decree in existence at the time when the sale
is held, the sale can be ignored and need not be set aside under the provisions
of rr. 89 to 91, C.P.C. In the present case, as we have held, the decree passed
against Ram Lal was void and has to be treated as non-existent and
consequently, the sale must be held 1 to be a nullity.
Learned counsel also referred us to the
decision of the Privy Council in Khiarajmal and Others v. Daim and Others(1),
but even that case, in our opinion, does not help the appellant. In that case,
the equity of redemption in respect of certain property was sold in execution
of decrees without service of notice on some, of the mortgagors. The Privy
"Their Lordships agree that the sales
cannot be treated as void or now be avoided on the grounds of any mere
irregularities of procedure in obtaining the decrees or in the execution of
them. But, on the other hand, the Court had no jurisdiction to sell the
property of persons who were not parties to the proceedings or properly
represented on the record. As against such. persons the decrees and sales
purporting to be made would be a nullity and might be disregarded without any
proceeding to set them aside." Proceeding further and dealing with the
case of one of the mortgagors, it was held that, because his interest in the
property had been ignored altogether and there was no decree against him, the
Court had no jurisdiction to sell his share. The portion of the judgment, on
which learned counsel relied, related to the remarks made by the Privy Council
when dealing with an earlier decision in Malkarjun v. Narhari(1). After
discussion the ratio of that case, their Lordships at the end remarked:
"In coming to this conclusion, their
Lordships are quite sensible of the importance of upholding the title of
persons who buy under a judicial sale; but in the present case the real
purchaser was the judgment creditor, who must be., held to have had notice of
all the facts." On the basis of this comment, it was urged that their
Lordships of the Privy Council intended to lay down that, if the
auction-purchaser was not a judgment-creditor, the sale could not be a nullity.
We are unable to read any such principle in that decision. In fact, the Privy
Council, in very clear words, held that the sale was a nullity and only, at the
end, took notice of the fact that, in that particular case before it, the real
purchaser happened to be the judgment creditor, so that the interest of a
stranger- (1) 32 I.A. 23:
(2) 27 I.A. 216.
576 ,purchaser could not be defeated by him.
We are not prepared to read in that judgment any decision that, if the
auction-purchaser is not the judgment creditor but a stranger, the sale would
be a valid sale, even though it was held in execution of a decree which was
void. A sale is void ab initio if it is held in execution of a decree which is
a nullity and, consequently, to be treated as non- existent. In the present
case, therefore, no rights could be acquired by the purchaser Prabhu Dayal, the
father of the 'appellant, when he purported to purchase the house in execution
of the decree against Ram Lal. Ram Lal having died without leaving any heir,
the property naturally passed by escheat to the Maharaja of Jaipur. That principle
is clearly recognised in Hindu law. Reference may be made to Mulla's Hindu Law,
13th Edition, p. 133, para. 59.
The decision given by the High Court, in
these circumstances, was perfectly correct. The appeal is dismissed with costs.
G.C. Appeal dismissed.