AIR 1961 CALCUTTA 336 ::65 Cal WN 171 ::ILR (1961) 2 Cal 664

Calcutta High Court

Hon'ble Judge(s): S. C. Lahiri , C.J. AND R. S. Bachawat, P. N. Mookerjee , JJ

Civil P.C. (5 of 1908) , S.50, O.21 R.22— Execution - Mortgage decree for sale - Death of judgment-debtor after sale proclamation and before sale - Non-joinder of legal representatives - Effect - Sale without impleading legal representatives is not valid and not binding upon them. 32 Cal WN 418 : 115 Ind Cas 520, Overruled. Where in execution of a mortgage decree for sale, the judgment-debtor dies after the sale proclamation was issued and published, the execution sale held thereafter, without impleading the legal representatives of the deceased judgment-debtor, is not valid and does not affect them in any way : 32 Cal WN 418 : 115 Ind Cas 520, Overruled; AIR 1942 Cal 436, held correctly decided; @page-Cal337 In view of the amendments in O. 21, R. 221 and R. 90 since 3-2-1933, so far as the Calcutta High Court is concerned, an omission to issue the notice required by O. 21, R. 22 is a mere irregularity not affecting the jurisdiction of the court in executing the decree. But these amendments do not abrogate S. 50. The decree-holder must still apply under S. 50 to execute the decree against the legal representative and obtain an order binding on him and allowing the execution to proceed against him. S. 50 embodies the fundamental principle that the legal representative must be made a party to the execution proceedin....