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Judgment
Kulwant Sahay, J.—These appeals arise oat of applications for restitution u/s 144, Civil P.C. On 23rd September 1918 the ijmali or residuary share of tauzi No. 4687 of mahal Pan-kerdih Malihari comprised of shares in 96 villages was sold for arrears of Government revenue and was purchased by Madan Mohan Lai in the farzinama of his servant Debilal and the auction purchaser was put in possession. There after eight suits wore instituted in the Court of the Subordinate Judge at Gaya by several sets of the old proprietors for setting aside the sale. The suits were decreed by the Subordinate Judge on 7th May 1921. The purchaser preferred appeals against the decrees in the eight suits to the High Court.
During the pendency of the appeal the plaintiffs took out delivery of possession and were put in possession of their respective shares in the various properties on 4th November 1921. Six out of the appeals preferred by the purchaser were decreed by the High Court and two of the appeals were dismissed. The decree of the High Court is dated 7th May 1924.
Thereafter the purchaser made applications to the Subordinate Judge on 25th August 1924 for restitution by delivery of possession and recovery of mesne profits for the period during which the late proprietors had remained in possession under the decrees of the Subordinate Judge, Possession was delivered to the purchaser and subsequently mesne profit were ascertained. The present appeals relate to the amount of mesne profits to which the purchaser is entitled.
In two of the appeals the learned Subordinate Judge has held that the delivery of possession to the purchaser in execution of the decree of the High Court was illegal inasmuch as some of the respondents in the appeal to the High Court had died during the pendency of the appeal, and in one case no guardian-ad-litain was appointed for certain minors and in another case there was no substitution in the place of the deceased respondent. He has accordingly held that in those two cases the purchaser was not entitled to delivery of possession and has made an order directing that the persons who were dispossessed in the proceeding relating to delivery of possession be restored to possession.
All the appeals except one (No, 149) are by the purchaser while appeal No. 149 is by some of the opposite party. The original purchaser, Madan Mohan Lal, died during the pendency of these appeals and his widow has now been substituted and she is the appellant in all the appeals, except appeal No. 149 in which she is the respondent. (His Lordship hero considered the evidence with regard to the existence of mukarrari lease and the amount of mesne profits-and proceeded). There remain two points which arise in two o� these appeals which require consideration.
In Appeal No. 229 which arises out of the Original Miscellaneous Case No. 60 of the Subordinate Judge the facts are these: The original suit for setting aside the sale, which was suit No. 9 of 1921, was instituted by Noorjahan Bibi and her adult son Abdur Razaq Khan and her minor son Badruddin Khan and her minor daughter Saiyidunnissa, Noorjahan Bibi acting as the next friend of. the two minors. Noorjahan Bibi died during the trial of the suit and her name was removed from the record and the aduit son Abdul Razaq was appointed the guardian of the two minors. The suit, as I have alseady stated, was decreed and Madan Mohan Lai the purchaser preferred First Appeal No. 127 of 1921 to this Court against Abdur Razaq Badruddin and Saiyidunnissa represented by Abdur Razaq as their guardian.
During, the pendency of the appeal Abdur Razaq died leaving a widow Najmunnissa and a minor son Aurangzeb Khan who were substituted in the appeal in the place of Abdur Razaq and Najmunnissa was appointed the guardian-ad-litem of her minor son Aurangzeb Khan. No application, however, was made for the appointment of a fresh guardian ad-litem of the two minor respondents Badruddin Khan and Saiyidunnissa who were represented till then by their elder brother Abdur Razaq as their guardian. The Court''s attention does not appear to have been drawn to the fact that no fresh guardian was appointed for these two minors and the appeal was heard and decreed against the minors without any guardian. It is now contended that so far as these two minors are concerned the decree of the High Court was a nullity, and, therefore, the purchaser is not entitled to possession under the decree of the High Court in respect; of the share of these two minors, nor is he entitled to any mesne profits in respect thereof. The learned Subordinate Judge has given effect to this objection and has directed that possession be delivered back to these two minors and that no mesne profits be allowed to the purchaser in respect of their shares. It is contended on behalf of the purchaser that the learned Subordinate Judge was wrong in holding that the decree was not binding against the shares of these two minors. The question depends on a finding whether the decree of the High Court was a nullity. The distinction between a decree which is a nullity and a decree which is merely voidable ought to be kept in mind.
The High Court had entertained an. appeal properly presented before it. The guardian-ad-litem was named in the memorandum of appeal and did enter appearance as such and defend the appeal. When the guardian-ad-litem named in the memorandum of appeal died, a fresh guardian ought to have been appointed; but, in my opinion, the non-appointment of the guardian was merely an irregularity and did not affect the jurisdiction of the Court and the decree was merely voidable and not a void decree. Reference has been made to several cases where it has been held that the validity of a decree can be questioned in the course of execution proceedings. In the first place the proceeding now before us is not a proceeding in execution but a proceeding for restitution u/s 144. In the second place the cases referred to relate to decrees which v/era held to be void decrees and not decrees which are merely voidable. It is true that no formal guardian was appointed for these two minors; but Najmunnissa the widow of Abdur Razaq. defended the appeal and an eminent counsel was engaged by her who argued the whole appeal, and although these circumstances are not sufficient to hold that the two minors were represented, yet their interest does not appear in any way to have been jeopardized.
The principle involved in Walian v. Banke Bihari [1903] 30 Cal. 1021 and Ram Sundar and Another Vs. Amrit Pajiyar and Another, is applicable and I am of opinion that the decree so far as these two minors are concerned was merely voidable and not a void decree and so long as the decree is not avoided in a proper suit or proceeding the minors are bound by it. I would therefore set aside the decision of the Subordinate Judge on this point and hold that the purchaser is entitled to possession of the share of these two-minors and also to mesne profits in respect thereof, and this appeal will go back to the Subordinate Judge so that steps might be taken to deliver possession to the purchaser in respect of the share of these two minors and a decree for mesne profits will be passed in respect thereof.
The last point arises in Appeal No. 273. In this case it appears that Zainabunnissa, one of the original plaintiffs in Suit No. 18 of 1921, died during the, pendency of the appeal in the High-Court which was First Appeal No. 128 of 1921. No substitution was made is her place and the decree was passed in so far as she was concerned after her death. Her daughter, Akhtarunnissa, objected to the delivery of possession to the purchaser in respect of the share of her mother Zainabunnissa, and the learned Subordinate Judge has allowed her objection and has directed that possession be restored to her and has disallowed mesne profits in respect of her share.
It is contended on behalf of the purchaser that Zainabunnissa was one of the plaintiffs in the suit and another plaintiff was her mother Bakhtaur Bibi who was also a respondent in the appeal; that Bakhtaur Bibi made a gift of the property in dispute to her daughter Zainabunnissa under a deed dated 10th February 1919 (Ex, V-3); that this gift was made after the revenue sale which had taken place on 23rd September 1918, and, that, therefore, there was no right; subsisting in Bakhtaur Bibi on the date of the gift and that Zainabunnissa did not acquire any interest by virtue of the gift and that, therefore, the fact that no substitution was made on the death of. Zainabunnissa did not affect the validity of the decree when Bakhtaur Bibi was a party to the appeal, and the decree was made against her. In my opinion this contention is not sound. It is true that the gift was made after the date of the revenue sale, but Zainabunnissa was made a plaintiff in the suit. for setting aside the sale by virtue of the gift. A decree was made by the Subordinate Judge in her favour that decree gave her a right to possession and in execution of that. decree she obtained possession. During the pendency of the appeal against that decree Zainabunnissa died and her heirs were not brought on the record of the appeal in her case, The decree of the High Court setting aside the decree of the Subordinate Judge did not therefore affect the interest of the heirs of Zainabunnissa. Here the question is not a question of a decree being merely voidable but of a decree being passed against a person who was dead and therefore, the decree was a void decree and the view taken by the learned Subordinate Judge appears to be correct. It is contended that if Akhtarunnissa, the daughter of Zainab. unnissa, was not a party to the appeal, then she cannot object to the delivery of possession in the present proceeding. This argument is based on the supposition that the provisions of Section 47, Civil P.C. apply to the present proceedings and that it is only the parties to the suit or their representative-in-interest who can object to the proceedings. The proceedings before us, however, are not ''proceedings in execution but proceedings u/s 144, Civil P.C. and the Court has inherent power to make such orders as may be necessary for the ends Of justice or to prevent abuse of processes of the Court. The auction purchaser took delivery on an application u/s 144 without notice to the heir Zainabunnissa. On being dispossessed the heir objected and asked the Court to restore her to possession. In my opinion the Court was justified in doing so under the inherent power possessed by it. I would therefore uphold the decision of the Subordinate Judge on this point and hold that the purchaser has no right to obtain delivery of possession un respect of the share of Zainabunnissa nor to mesneprofiits in respect thereof.
The result is that in all the appeals of the purchaser the decree of the learned Subordinate Judge will be modified as regards the mesne profits in respect of the produce of lac, arid that in appeal No. 229 the decree of the Subordinate Judge will be further modified as regards the delivery of possession in respect of the share of the two minors Badruddin Khan and Saiyidunnissa and the mesne profits in respect thereof as indicated above; in other respects the appeals will stand dismissed. Appeal No. 149 by the opposite party will also stand dismissed.
Having regard to the circumstances of the case each party will bear his own costs in all the appeals.
Wort, J.
I agree.