Krishnaswami Ayyangar, J.
1. The petition which gave rise to the order under appeal was filed by the first respondent, who was a purchaser amongst others of the property in dispute in execution of a mortgage decree obtained by himself in O.S. No. 81 of 1931 on the file of the Court below. In 1922, some three years after the mortgage, the equity of redemption in an extent of 6.16 acres out of the mortgaged property was purchased by one Venkataramiah in Court-auction in execution of a money decree obtained against the mortgagors. The purchaser also obtained possession through Court on 3rd December, 1922. In 1930, Venkataramaiah was adjudicated an insolvent and his estate vested in the Official Receiver. At the time When the mortgage suit, O.S. No. 81 of 1931, was instituted, which was on 22nd October, 1931, the insolvency was still pending and the plaintiff, therefore, impleaded the Official Receiver as a defendant. He also impleaded Venkataramaiah's son, but Venkataramaiah himself was not made a party. On 17th February, 1933, the adjudication was annulled and the insolvent's properties were revested in the insolvent by order of Court. The suit, however, proceeded without Venkataramaiah being added as a party, and a preliminary decree was passed on 25th Sep., 1933 followed by a final decree on 24th November, 1934. E.P. No. 9 of 1936 was then filed by the decree-holder for the execution of the decree by sale of the mortgaged property. On 25th September, 1936, while that execution petition was pending, he put in E.A. No. 339 of 1936 for the joinder of Venkataramaiah in the execution proceedings, but the application was, rightly in our opinion, dismissed on 7th April, 1937. This was obviously an attempt to cure the defect due to the omission to bring Venkataramaiah on the record in the suit. As it was unsuccessful, the decree holder made another attempt to get rid of the objection of Venkataramaiah that, not being a party to the suit, the decree did not bind him. E.A. No. 293 of 1938 was accordingly filed for the removal of the obstruction caused by Venkataramaiah to the receiver appointed in the suit, taking possession of 3.14 1/2 acres out of the property originally purchased by the latter. On this occasion also the decree-holder failed. By its order on this application, the Court directed the receiver to refrain from interfering with the possession of the obstructor. It will be seen that the obstruction related only to 3.14 1/2 acres, whereas Venkataramaiah had purchased 6.16 acres. The difference represents the share of Venkataramaiah's son decreed to him in a suit for partition instituted by him. The son's share was bound by the mortgage decree as he had been made a party to the suit, and on his death his mother had been substituted as his legal representative.
2. The mortgaged property was finally brought to sale, and the first respondent, the decree-holder, became the purchaser in court-auction. He then filed E.A. No. 440 of 1940 on. the strength of his purchase, asking for delivery of possession of the property purchased, inclusive of the portion, namely, 3.14, acres 1/2 in Venkataramaiah's possession. By this time Venkataramaiah had sold the property to the appellants under a sale deed dated 15th March, 1940, and the real object of the application was to remove the obstruction caused by the latter. The appellants, who were made respondents along with the judgment-debtors, opposed the application on the ground that neither the decree nor the sale held in pursuance of it bound the interests of Venkataramaiah, as he had not been brought upon the record after, and in spite of, the annulment of his adjudication long prior to decree and the re-vesting of the property in him. If Venkataramaiah was not bound, the appellants who had purchased the property from him could not be bound by the proceedings which had been taken behind his back. But the learned Subordinate Judge has held that Venkataramaiah was sufficiently represented by the Official Receiver even after the annulment of the adjudication, and accordingly he has by his order, directed the removal of the obstruction and the delivery of the property to the decree-holder who, as we have said, is the first respondent. It is against this order that the present appeal is filed.
3. The respondents' advocate took a preliminary objection that the appeal is incompetent, as on their own showing the appellants were neither parties to the suit nor representatives of the parties within the meaning of Section 47 of the Civil procedure Code, and no right of appeal is recognised by any other provision of the Code. But an appeal does lie if the Court purports to make the order under a provision of law wrongly assumed by it to be applicable though it was really not applicable provided of course that an appeal is ordinarily permitted against orders rightly made under that provision. (See Abdul Rahiman Saheb v. Ganapathi Bhatta (1920) 10 M.L.J. 305 : L.R. 23 Mad. 517 Latchmanan Chetty v. Ramanathan Chetty (1905) 14 M.L.J. 436 : I.L.R. 28 Mad. 296 (P.C.) Muthiah Chettiar v. Govinddoss Krishnadoss : AIR1921Mad599 . In the present case, the learned Subordinate Judge has in effect held that the appellants derive their right under a person who had been properly represented by the Official Receiver, who had been made a party to the suit, in other words, that they are the representatives of one of the parties. |Except in this view the order could not have been made against them, as they were strangers to the decree. Having invited the Court to pass the order on the footing that the appellants were the representatives of a party to the suit, or of one who was sufficiently represented by a party, the respondents cannot now be permitted to urge the contrary in bar of the maintainability of the appeal.
4. In support of the preliminary objection reliance was also placed on Order 21, Rule 103 which says that any party not being a judgment debtor against whom an order is made under Rule 08, Rule 99 or Rule 101 may institute a suit to establish the right which he claims to the present possession of the property; but, subject to the result of such suit (if any), the order shall be conclusive. The argument was that if any person other than the judgment-debtor, even a person who is a representative of the judgment-debtor claiming under him, wants to question the correctness of an order passed under Rule 98 he can do so only by suit and not by appeal under Section 47 of the Code. It is contended that the representative of the judgment-debtor is not within the language of Rule 103, which, according to the respondents makes an exception only in favour of a judgment-debtor and not in favour of his representative. But this contention entirely ignores the provisions of Section 146, Civil Procedure Code, under which a representative can take any proceedings and make any application which could have been made by the person under whom he claims. The preliminary objection fails and is accordingly overruled.
5. Now coming to the merits, the principle to start from is that nobody can be bound or prejudiced by an order made in a proceeding to which neither he nor. the person under whom he claims was a party. If it is alleged that he or his interest was sufficiently represented in the proceeding by another person, it must be shown that at the time when the order was passed, the representative character was subsisting and had not been shed by the representative. In the words of the Judicial Committee of the Privy Council in Khiarajmal v. Dain (1905) L.R. 33 IndAp 33 : I.L.R. 32 Cal. 296 (P.C.) the Court has ' 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.
6. We consider that it is this principle which underlies the decisions of the Privy Council in the two cases to which reference will be made immediately. In Raghu-nath Das v. Sundar Das Ketri the judgment-debtors were adjudged insolvents pending execution of a money decree and after an attachment had been effected, but before the sale. The Official Assignee was substituted in place of the judgment-debtors after a notice which only called upon him to show cause why he should not be substituted, but not why the decree should not be executed against him. The Official Assignee took no steps to intervene in the execution proceedings with the result that the property which had been attached was sold and the respondent was declared the purchaser. The contest for possession was between him and a purchaser from the Official Assignee, who sold the property long afterwards, but with the leave of the insolvency Court. The Privy Council held that the Official Assignee's sale conveyed title to the latter, while the former got nothing under the court-sale. The decision was rested on three grounds, two of which are material for the present purpose. They are : (1) that the Official Assignee was not bound by the court-sale, as no proper steps had been taken to bring him before the Court and obtain an order binding him on; and (2) that the judgment-debtors had at the time of the sale no right, title or interest which could be sold or vested in a purchaser and consequently the court purchaser acquired no title, to the property. The case affords an illustration of the consequence which follows from an omission to bring on the record the person on whom the property sold or some interest in it has devolved during the pendency of the suit or even afterwards during the execution proceedings. Where such an omission occurs, the sale does not bind the interest of the person on whom it has devolved within the meaning of Order 21, Rule 10, of the Civil Procedure Code. The only exception is when the devolution results from a transfer pendente lite, for which statutory provision is made in Section 52 of the Transfer of Property Act, 1882, and Order 22, Rule 102, of the Civil Procedure Code. In Kala Chand Banerjee v. Jagannath Marwari the facts were these : On 11tn January, 1915, the mortgagees under a mortgage executed by Tara Prasanna Bose in February, 1913, instituted a suit for foreclosure. There was a compromise of the suit arrived at between the mortgagor and the mortgagees under which it was agreed that the time for payment of the mortgage debt should be extended on the undertaking of the mortgagor to pay interest regularly every year within the month of Chaitra, failing which the mortgagees were entitled to foreclose. The deed of compromise was filed into Court on 6th March, 1915. But before any order was made, the mortgagor, Tara Prasanna Bose, died on 7th September, 1915. On his death, the equity of redemption devolved by inheritance on his son, Amulya Krishna Bose. But Amulya Krishna Bose had been adjudicated an insolvent on 21st February 1914, and his estate was vested by an order of Court in a receiver, who therefore became entitled to the equity of redemption the moment the inheritance devolved on the insolvent Amulya. There was thus a devolution of the interest of Amulya on the receiver within the meaning of Order 22, Rule 10. But the proceedings went on without the receiver being made a party and resulted in a preliminary decree against Amulya on 15th March, 1916, which was followed by a final decree on 31st August, 1916, by which Amulya was debarred from all right to redeem the property. The receiver made an unsuccessful attempt to be substituted on the record in place of Tara Prasanna Bose, but he was never in fact made a party.
7. He thereupon brought a suit, to set aside the foreclosure decree and for redemption of the mortgage. The Privy Council held that the entire proceedings taken with Amulya only on the record were ineffective to bind the equity of redemption vested in the receiver. Their Lordships pointed out that the final decree passed in the suit, even after hearing the objections of the receiver who was heard on the occasion, did not constitute res judicata against him as it was pronounced in a suit to which he had not been made a party and accordingly decreed the suit in his favour. Their Lordships further repelled the contention that the reservation of the right of a secured creditor under Section 28(2) of the Provincial Insolvency Act to realise or otherwise deal with the security' notwithstanding the insolvency of the mortgagor made no difference, as it did not in the least imply that an action by him may proceed in the absence of the person to whom the equity of redemption had been assigned by the operation of law.
8. The position then is that if a creditor seeks to sell the property of his judgment debtor after his insolvency, whether the debt sued on is a simple one or is secured by a mortgage, he must either implead the Official Receiver before decree or take the necessary steps in execution for the purpose of binding him. Otherwise the resulting sale will not bind him as the devolution of interest in such a case is not due to a transfer affected by the doctrine of Us pendens. See the Indian Cotton Co. v. Ramacuanlal I.L.R. (1941) Nag. 559. The cases so far cited relate to the insolvency of a defendant or a judgment-debtor, as is the case in the appeal before us, and are therefore of great importance in its decision. The only difference is that we have not here a case of the vesting of property in the receiver, but a re-vesting of the property in the insolvent consequent on the annulment of his adjudication, the insolvent not having been substituted in place of the receiver. But this does not, in our opinion, in any way affect the application of the broad principle that no person can be prejudiced by proceedings taken behind his back. After the annulment the Official Receiver became functus qfficio and he cannot thereafter represent the estate of the insolvent.
9. Mr. Govindarajachari, however, contended that the correct rule of law on the point is that, if the suit as originally filed was properly constituted with reference to parties, any decision obtained therein is binding on all persons on whom the interest or right in dispute may devolve, pending the disposal of the suit. The proposition so stated is obviously too wide and he therefore qualified it by adding an exception in cases where the devolution of interest was brought about by the death or insolvency of a party to the suit. For the contention so advanced Mr. Govindarajachari has relied on certain decisions to which reference will immediately be made. In Rai-cltaran Mandal v. Biswanath Mandal (1914) 26 I.C. 410 it transpired that in a suit for possession and mesne profits the interest of the plaintiffs in the subject-matter of the suit was sold pendente lite in execution of a decree for arrears of rent and was purchased by the landlords who were strangers to the suit. The Court of first instance dismissed the suit. But the Subordinate Judge on appeal reversed that decision and gave a decree to the plaintiffs. In second appeal the defendants raised the contention that the Subordinate Judge was wrong in decreeing possession in favour of persons who at the time the decree was made had lost all interest in the property by reason of the court sale. This contention was overruled on the ground that the devolution of interest pendente lite did not prevent the Court from passing a decree in favour of the plaintiffs. It was pointed out that the person who acquired an interest in the subject-matter of the litigation pendente lite is entitled to apply to the Court for leave to continue the suit, though it was not obligatory upon him to do so. But if he does not not ask for leave, he takes the risk of the suit not being properly conducted by the plaintiffs on record, and yet the decision would be binding upon him, as held in Moti Lal v. Karrabuldin I.L.R. (1897) 25 Cal. 179 (P.C.). The last mentioned decision will, however be found on examination to go no further than to extend the principle of the doctrine of Us pendens to involuntary alienations which do not strictly fall within the language of Section 52 of the Transfer of Property Act. The Calcutta decision does not therefore furnish a parallel to a case such as the one before us to which the doctrine of Us pendens is not applicable, as conceded by the respondents' learned advocate. In the next case cited by Mr. Govindarajachari, Viswanathaswami Devasthanam v. Koodalinga Nadan (1927) M.W.N. 743 the facts are not quite clear. An appeal in the Court of the Subordinate Judge of Ramnad was decided against Kasi Viswanathaswami Temple represented at the time by two trustees whose names appeared on the record. The appellate judgment was pronounced on 24th November, 1923. Long before that, on 8th July, 1922, the two trustees had tendered their resignation. One of them died in January, 1923, and the resignation of the surviving trustee was accepted by the temple committee only on or about 5th August, 1923 when two other trustees were appointed in the place of the old trustees But the new trustees took over charge only on 13th January, 1924, after the decision of the appeal by the Subordinate Judge. The new trustees then filed a second appeal in which the only ground taken was that the appeal to the lower appellate Court was heard at a time when even the surviving trustee had ceased to be a trustee by reason of his resignation having been accepted in August previous and by reason also of a valid appointment to the trusteeship having been made by the committee. Srinivasa Ayyangar and Reilly, JJ, held that this ground was untenable. Reilly, J., based his judgment on the circumstance that the surviving trustee was not shown to have handed over charge of his office at the time when the Subordinate Judge heard the appeal. Srinivasa Ayyangar, J., appears also to have been of the same opinion. He observed:
It has often been held that judgments in respect of temples and idols obtained by or against de facto trustees thereof are binding, if otherwise, unsasailable in the same manner and to the same extent as if they had been obtained by or against trustees de jure.
10. The learned Judge has however made the following further observations and it is on them that Mr Govindarajachari relied:
But the whole policy of the Code is that if the proceeding originally instituted is proper and right, any decision obtained therein is binding on all persons on whom the interest or right may devolve pending the disposal of the proceeding. If that is the true theory of the Civil Procedure Code then it seems to me that there is really no difficulty at all in the present case. It was no doubt open to the new trustees if and when appointed to apply to the Court to be brought on the record and make themselves parties to the appeal. That they did not do, and there being no specific or positive provision by which the appeal or proceeding can be said to have abated on the resignation or dismissal even of a person holding the representative character, it is difficult to agree with the contention put forward on behalf of the appellants and hold that on the mere resignation by a trustee being accepted the whole proceeding tends to the same position as in the case of the death of a party.
11. Although the language here employed is general, it must of course be read in conjunction with the facts of the case which show that the devasthanam was held to have been properly represented in the litigation by a de facto trustee That a de facto trustee can maintain a suit in the name of the temple and for its benefit, if he is in actual possession and management of the temple and its properties is no longer open to question. See Mahadeo Prasad Singh v. Karia Bharthi : (1935)68MLJ409 . In Ittuman Panikkar v. Narayana Bharatikal (1928) M.W.N. 746 a decree was passed by the trial Court in favour of a devaswom represented by a trustee. Shortly after the institution of the suit, there was an order of removal made against the trustee. But the validity of the order had not been decided. Following the decisions in Raicharan Mandal v. Biswanath Mandal (1914) 26 I.C. 410 and Viswanathaswami Devasthanam v. Koodalinga Nadan (1927) M.W.N. 743 Wallace and Srinivasa Ayyangar, JJ., held that the decree obtained in favour of the devaswom represented by the trustee was valid notwithstanding that an order of removal had been passed against him. The ground of the decision would appear to be that the devaswom was sufficiently represented by the de facto trustee in possession, though he might have lost his right to the office during the pendency of the suit as a result of the order of removal passed against him. The next case relied on by the respondent is that reported as Sekhara Menon v. Narayanan : AIR1930Mad881 . Here again the suit had been instituted by one of several uralans of a devaswom, the other uralans having been joined as defendants. One of the uralans who was a defendant died pending the suit, but the succeeding uralan was not substituted in his place. The Court held that the decree passed in favour of the devaswom was valid. The head note which summarises the decision correctly is as follows:
The death or removal of one of the uralans who has been made a party defendant in a suit by one of the uralans to redeem a kanom on behalf of a Malabar devaswom does not ipso facto abate the appeal or suit and specially more so, if the deceased defendant was a. pro forma defendant and had supported the plaintiff's claim.
12. In the course of the judgment, the learned Judges observe that there is authority for the proposition that in order that a decree may bind a devaswom it is not necessary to have all the trustees or uralans as parties, provided that the litigation was conducted bona fide in the interests of the devaswom by those uralans who were parties, and for this proposition reliance was placed on Madhavan v. Keshavan I.L.R.(1887) Mad 191 explained and approved in Godimella Rangamma v. Panchangam Narasimhacharyulu (1916) 2 M.W.N. 258.
13. It seems to us that these cases, which really proceed on the view that a temple could be represented in a litigation by a de facto trustee or by some alone of the de jure trustees/stand on a different footing from cases like the one before us. A Hindu idol, it must be remembered, is a juristic entity and has a juridical status with the power of suing and being sued, though it must necessarily act through the medium of a human agency. Trustees or dharmakarthas so called in common parlance,are but managers of the institution and, when they sue, they must sue in the name of the idol which is the real party to the suit. The validity of a decre'e passed in its favour or against it depends upon whether the institution was sufficiently represented in the litigation and its interests duly protected. We are, therefore, clearly of opinion that the cases cited for the respondent are inapplicable to the facts present in this case and there is no justification here for departing from the rule of law that no decree or order binds a person who was not a party to the suit or is one who claims under a party to the suit.
14. The result is that the learned Judge's order must be set aside and the first respondent's petition should be dismissed with costs here and in the Court below.