# RAM CHANDRA ARY A v. MAN SINGH & ANR

- **Citation:** [1968] 2 S.C.R. 572
- **Court:** Supreme Court of India
- **Decided:** 1967-12-08
- **Case number:** Civil Appeal No. 379 of 1965
- **Bench:** J. C. Shah, V. Ramaswami, V. Brargava
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-chandra-ary-a-v-man-singh-anr-4239
- **Pages:** 5

## Headnote

Code of Cfril Procedut< (Act 5 of 1908), 0. 35, r. 15-Suit again&t
huiatic l'.'ithout appointm:!nt
of a
guardinn.-ad./ite~Decree in
swit
whether c nullity-Sale in execution of such decrte whtthtr voki.
An ex-part!! decree "'·a~ p~ssed aitainst R in a money suit and in exe·
curion thereof his house was sold.
It was purchased by the appellanrs
father.
Formal possession was given :o the purchaser but R continued 11<>
C
reside in the house till bis death in 1945. As be died without bcin the
Maharaja of Jaipur whose subject he was took possession of the bouoe.
The appellanl"s father then filed a wit for the possession of the ho ....
The suit was contested on the ground that R was a lunatic and Ii.nee
the earlier suit had been instituted against him without appointment of.
a guardian-cd../item, the decree in that suit was a nullity and the execution sale void.
This defence was accepted by the trial coun, the ~ D
appellate court, and the High Court.
By special leave the appellant C&lllC
10 this Court.
HELD : It is a well-<;etlled principle that if a decree is pa5'ed against
a minor \\.'ilhout appointment of a guardian, the decree is a nullity and
is Toid and not merely voidable. This principle becomes applicable to Ille
cage of a lunatic in view of r. 15 of 0.12 of the Code of Civil Procedure.
so that the decree obtained against R was a decree which had to treateol
E
"" without iurio;diction and ;·oid. f574 A-BJ
A sale is void ab initio if it is held in execution of a decree "'hiCh i~
a nu11ity and, con'iequentlv. to he treated as
non~xistcnt.
In the present case therefore no rights could he acquired by the purchaser when he
nurportcd h) rurch:tcoc th~ hou'.,~ in execution of the decree against R. [576
BJ
R having died without lea\ing any heir, the property naturally pas.ed·
by e'Cheat to the Maharaja of Jaipur. That principle is clearly reco~
in Hindtl law. [576 CJ
Jarwk Raj v. Gurdial Si11gh & Anr. [1967] 2 S.C.R. 77, Khiarajmal &
()rs. v. Dain1 &' Ors. 32 I.A. 23 and Afalkarjun v. NarhC!ri. 27 I.A. 216,
referred to.
Crvu. APPELLATE JURISDICTION : Civil Appeal No. 379 of
1965.
Appeal by special leave from the judgment and .Iecree dated
D1:.~t>mbcr 21, 1961 of the Allahabad High Cou; l in Second
Appeal No. 920 of 1952.
J. P. Goyal and Sobhagmal Jain, for the appellant.
S. P. Sinha and M. I. Khowaja, for the resjJ<J~dents.
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RAM CHANDRA v. MAN SINGH (Bhargava, J.)
573

## Text

572
RAM CHANDRA ARY A
A
v.
MAN SINGH & ANR.
December 8, 1967
' ·'
B
[J. C. SHAH, V. RAMASWAMI AND V. BRARGAVA, JJ.]
Code of Cfril Procedut< (Act 5 of 1908), 0. 35, r. 15-Suit again&t
huiatic l'.'ithout appointm:!nt
of a
guardinn.-ad./ite~Decree in
swit
whether c nullity-Sale in execution of such decrte whtthtr voki.
An ex-part!! decree "'·a~ p~ssed aitainst R in a money suit and in exe·
curion thereof his house was sold.
It was purchased by the appellanrs
father.
Formal possession was given :o the purchaser but R continued 11<>
C
reside in the house till bis death in 1945. As be died without bcin the
Maharaja of Jaipur whose subject he was took possession of the bouoe.
The appellanl"s father then filed a wit for the possession of the ho ....
The suit was contested on the ground that R was a lunatic and Ii.nee
the earlier suit had been instituted against him without appointment of.
a guardian-cd../item, the decree in that suit was a nullity and the execution sale void.
This defence was accepted by the trial coun, the ~ D
appellate court, and the High Court.
By special leave the appellant C&lllC
10 this Court.
HELD : It is a well-<;etlled principle that if a decree is pa5'ed against
a minor \\.'ilhout appointment of a guardian, the decree is a nullity and
is Toid and not merely voidable. This principle becomes applicable to Ille
cage of a lunatic in view of r. 15 of 0.12 of the Code of Civil Procedure.
so that the decree obtained against R was a decree which had to treateol
E
"" without iurio;diction and ;·oid. f574 A-BJ
A sale is void ab initio if it is held in execution of a decree "'hiCh i~
a nu11ity and, con'iequentlv. to he treated as
non~xistcnt.
In the present case therefore no rights could he acquired by the purchaser when he
nurportcd h) rurch:tcoc th~ hou'.,~ in execution of the decree against R. [576
BJ
R having died without lea\ing any heir, the property naturally pas.ed·
by e'Cheat to the Maharaja of Jaipur. That principle is clearly reco~
in Hindtl law. [576 CJ
Jarwk Raj v. Gurdial Si11gh & Anr. [1967] 2 S.C.R. 77, Khiarajmal &
()rs. v. Dain1 &' Ors. 32 I.A. 23 and Afalkarjun v. NarhC!ri. 27 I.A. 216,
referred to.
Crvu. APPELLATE JURISDICTION : Civil Appeal No. 379 of
1965.
Appeal by special leave from the judgment and .Iecree dated
D1:.~t>mbcr 21, 1961 of the Allahabad High Cou; l in Second
Appeal No. 920 of 1952.
J. P. Goyal and Sobhagmal Jain, for the appellant.
S. P. Sinha and M. I. Khowaja, for the resjJ<J~dents.
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RAM CHANDRA v. MAN SINGH (Bhargava, J.)
573
The Judgment of the Court was delivered by
Bhargava, J. This appeal arises out of a suit fer possession of
a house which, at o'ne time, used to belong to one Ram Lal. ·On
11th January, 1939, one Ram Das filed suit No. 354 of 1939
against Ram Lal in the Court bf 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 pass- ·
ed on 27th March, 1939, after the Court held that Ram Lal had
been sulEciently 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
appe.al.
Formal delivery of possession was taken and ·the certificate of delivery of sale is dated 15th May, 1941. Adn1ittedly,
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 Maharaj a of Jaipur and, on Ram Lal's death, the
servants of the Maliaraja 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 guardidnod-litem, so that the decree in the &Uit was a nullity. The sale in
execution of !hat 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 Allallabad High Court who referred it to a
Division Bench as, in his opinion, the case involved an iillportant
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 b:; 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
decr.e~ was,, therefore, void.
It appears from the judgment
of the High Court that, in that Court, no attempt was made on
behaif of the appellant to contend that the decree which was
obtained a£ainst Ram Lal and in execution of which the house was
sold was not nul! 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
SUPREME COUllT REPORTS
[1968] 2 S.C.R.
decree passed in that suit.. It is now. a well-settled principle that,
if a decree 1S passed agamst. a mmor without appointment of a
guardian, .the dcc~ee is a nulhty and is void and not merely void-
~ble. This pnnc1ple becomes applicable to the case of a lunatic
m 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 circwnHances, 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 ihis Court in Janak Raj v. Gurdia! Singh mid Another('). The decision of that case is, however, not applicable to
the case before us at all.
In that case, a stranger to ihe 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 confirmation 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 pro~rty is sold in execution. He can file an applica!ion
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 parre 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
re;ort 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 nonest and, consequently, the sale, when held, 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 stating:
"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
instaace,
where a sale is held without giving notice to the judgment-debtor, or where the court is misled in fixing the
reserve rrice or when there was no decree in
exi~tence
at the time when the sale was held."
l 1) (19671 2 S.C.R. 77.
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RAM CHANDRA v. MAN SINGH (Bhargava, J.)
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 anc! consequently, the sale must be held to be a
nullity.
Learned counsel also referred us to the decision of the Privy
Council in Khiarajmal and Others v. Daim and Others('), but
even that case, ill 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 Council held:
"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(').
After discussion the ratio of that
case, their Lordships at the end remarked:
"In coming to this conclusion, their Lordships aie
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 auctionpurchaser was not a judgment-creditor, the sale could not be a
nullity. We are unable tel 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
(I) 32 I.A. 23:
(2) 27 I.A. 216.
576
SUPJlEME COURT REPOJlTS
[1968) 2 S.C.R.
purchaser cou]j not be defeated by him. We are not prepared to
A
·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 nonexistent.
In the present case, therefore,
no
rights
could be
B
acquired by the purchaser Prabhu
Dayal,
the
father of the
appellant, when he purpor:ed to purchase the house in execution
of the decree against Ram Lal.
Ram Lal having died
without
leaving anv heir, the property naturally passed by escheat to the
•
Maharaja of Jaipur. That principle is clearly recognised in Hindu
law.
Referenee may be made to Mulla's Hindu Law,
13th c
Edition, p. 133, para. 59.
The deci\ion given by the High Court, in these circumstances,
was perfectly correct. The appeal is dismissed with costs.
G.C.
Appeal dismissed.