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Appeal from Appellate Order No. 3 of 1967, decided on 29th July 1968.

‑Execution of decree‑Whether and when executing Court can refuse execution and question validity of decree‑Decree, prelimi nary or final, passed after death of party‑Nullity and as such incapable of execution unless legal representatives brought on record prior to passing of decree‑Executing Court, not competent in law to grant substitution of heirs of deceased party‑Executing Court entitled to determine whether decree sought to be executed was a nullity or not‑Preliminary decree passed after death of a defendant who is not a necessary party‑Not a nullity.

In a partition suit a defendant died‑ before the preliminary decree was passed and a plaintiff and another defendant died after the preliminary decree but before the final decree was drawn up. On the question whether the decree in such circum stances was capable of execution:

Held, where the decree presented or execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment‑debtor's persons to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits the executing Court is authorised to question the validity of a decree if a decree, therefore, is a nullity on account of the death of a necessary party before making of the decree, the trial Court acted without jurisdiction in making decree and executing Court may refuse to execute such a decree. The word apparently' used in connection with the proposition laid down is a word which must always be very carefully kept in view. What the proposition means is that the executing Court would be competent to refuse to execute the decree only when on the face of the decree it would appear that the Court which passed it had no jurisdiction. When we say the decree' we mean the decree and the papers relevant for the purpose of understanding it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the Court's jurisdiction to entertain a suit and if upon the basis of that jurisdiction the decree is passed by the Court without there being a challenge by the defendant as regards the territorial jurisdiction of Court to pass the decree, it remains open to the defendant to question the jurisdiction .of the Court after the decree has been made and in the course .of its execution. That is exactly what is intended to be guarded against. There is preponderance of authorities in favour .of the proposition that a decree against a dead person whether after the preliminary or a final decree would be a nullity and .as such incapable of execution unless substitution of heirs of the deceased party was effected prior to the passing of the decree in question and that the executing Court was entitled to determine as to whether the decree which was sought to be ‑executed was a nullity or not. In the process of finding out if a party is dead, it is also to be examined in the ends of justice if the deceased was a necessary party and if so when he died. It is, in fact, reasonable to think that the question involves a decision as to whether a dead person was a necessary party and to that extent an investigation by the executing Court is permissible in order to do complete justice in the matter. Where the preliminary decree in the case was passed after the death of one of the defendants who was not a necessary party the preliminary decree cannot be held to be a nullity owing to the death of such defendant. But a final decree was, however, a nullity by reason of the death of one of the plaintiffs and one of the defendants and the executing Court could not in law grant substitution of the heirs of the deceased parties. It was plainly the duty of the executing Court to hold that the final decree was not executable.

Himangshu Bhusan Kar and others v. Mainindra Mohan Saha A I R 1954 Cal. 205 and Raddulal Bhurmal and others v. Mahabir Prasad Bisesar Kalwar and others A I R 1959 Bom. 384 distin guished.

Gora Chand Haldar v. Profulla Kumar Roy and others 42 C L J; Jonab Ali Khan v. Satish Chandra Roy 43 C L J 110 ; Amalabala Dasi v. Sarat Kumari Dasi and another 54 C L J 593 ; Basiruddin Fariadar v. Saradindu Narayan Roy and others 60 C L J 102 ; Ram Khelawan Choudhury v. Ramudar Choudhury A I R. 1939 Pat. 534 ; Jungli Lall and others v. Laddu Ram Marwari and another A I R 1919 Pat. 430 ; Abdur Rehman and others v. D. Ezrkial 39 C W N 1284 ; Smt. Pasanda Bibi v. Sk. Sunaraddi and others 4 D L R 157 ; Moksed All Klan v. Katu Khan and others P L D 1962 Dacca 690 and Abdul Khaleque Bhuiya and another v. Tafizuddin and others Civil Revision Case No. 339 of 1948 ref.

Nizamuddin Haidar with S. M. L. Karim for Appellants.

A. C. Sarkar with Lafond Gomes for Respondents.

‑The question raised in this appeal is whether a preliminary decree and a final decree passed in a Partition Suit would be executable, although a defendant died before the preliminary decree and a plaintiff, and a defendant died after the preliminary decree but before the final decree.

Facts relevant for the disposal of this appeal are as follows: ‑

Defendant No. 44, Belatonnessa died on 31‑7‑62. Then preliminary decree in the suit was passed on 15‑2‑63. It is, therefore, clear that the defendant No. 44 died long before the preliminary decree.

Plaintiff No. 3, Sekandar Bepari and defendant No. 60, Sona Ban died on 23‑4‑63, and 8‑7‑64 respectively. The final decree was passed on 5‑10‑64. It will therefore, be seen that the plaintiff No. 3 and defendant No. 60 died after the preliminary decree but before the final decree was passed. Thereafter an execution case was started and a petition under section 47 of the Code of Civil Procedure was submitted on 28‑1164 to the executing Court and the Miscellaneous Case No. 63 of 1964 was started. The executing Court by its order, dated 8‑3‑65 rejected the said application. On appeal, the learned Additional District Judge by his order dated 31‑12‑66 allowed the appeal and dismissed the Execution Case on the objections raised in the petition under section 47 of the Code.

The Executing Court found that defendant No. 44, Belatonnessa was not a necessary party as the kabala on the basis of which she was made a party stood in the name of her husband, Nawab Ali who is already on the record as defendant No. 43. That Court also found that the plaintiff No. 3 and defendant No. 60 were necessary parties but surprisingly enough on an application filed on behalf of the decree‑holder, it allowed substitution of the heirs of the deceased parties.

The District Judge found that the plaintiff No. 3 and defendant No. 60 were already dead when the final decree was passed and therefore, that decree was a nullity. He, however, did not apply his mind to the evidence relating to the defendant No. 44 Belatonnessa not being a necessary party and he reversed the finding of the Executing Court without taking into consideration the absence her name from the kabala itself by which title to the suit property is claimed. The finding of the Executing Court in this behalf has been improperly reversed by the appellate Court, we, therefore, accept the finding of the Executing Court and hold that Belatannessa was not a necessary party.

Mr. Nisamuddin Haider, Learned Advocate for the appel lants submits that the Court of Appeal below erred in law in dismissing the execution case for the Executing Court cannot go behind the decree and in support of his contention he places his reliance on the case of Himangshu Bhosan Kar and others v. Mainindra Mohan Saha (A I R 1954 Cal. 205). In that case a learned Single Judge of the Calcutta High Court, P. W. Mookerjee, J., observed

"I may also note that even if the case came under Rule 3 of Order XXII and there was in law an abatement of the suit, that also would not make the decree eventually passed in the suit as one without jurisdiction and in that case also the executing Court will not be entitled to refuse to execute it on that ground. It would no doubt be open to the defendants in such a case to challenge the decree in appeal or in a proper case in revision or to have it set aside in the suit itself by appropriate but so long as the decree stands the executing Court is bound to execute it according to its terms."

I am in respectful agreement with the learned Judge that so long as the decree stands, the Executing Court is bound to execute it. But I must say the decree which is a nullity is not a decree in the eye of law. In that case the heirs of the deceased plaintiff were already on the record. There was no difficulty in proceeding with the execution case. The observation quoted above is, therefore, in the nature of an obiter and does not apply to the facts of the present case.

Next decision relied on by Mr. Haider is the case of Raddulal Bhurmal and others v. Mahabir Prasad Bisesar Kalwar and others (A I R 1959 Bom. 384). In that case the plaintiff died before the preli minary decree was passed in a suit for foreclosure. It was held that the Court was not entitled to refuse to pass a final decree merely because the legal representatives of the deceased‑plaintiffs were not brought on record within the period of limitation.

This case is also distinguishable from the case before us as there was no substitution of the heirs of the deceased by the trial Court in the instant case before passing of the final decree.

Mr. A. C. Sarkar who appears on behalf of the res pondents submits, on the other hand, that the Executing. Court can refuse to execute a decree if it is a nullity and places his reliance on a Full Bench decision of the Calcutta High Court consisting of Walmsley, C. C. Ghose, Suhrawardy, B. B. Ghose and Duval, JJ in the case of Gora Chand Haldar v. Profulla Kamar Roy and others (42 C L J 1). In that case it was held that where the decree presented for execution was made by a Court which "apparently" had no jurisdiction, whether pecuniary or territorial or in respect of the judgment‑debtor's person to make the decree, the execu ting Court would be entitled to refuse to execute it on the ground that it was made without jurisdiction. Sir Hugh Walmsley, J. delivering the judgment of the Full Bench observed :‑

"We have to start by accepting the position that the Court that made the decree had no jurisdiction to make it, and by that expession is meant that the Court had not such territorial jurisdiction as would authorise it to make the decree, and not that having jurisdiction it exer cised it erroneously. This distinction is of great importance for with all respect I venture to think that the apparent conflict in reported cases is largely due to failure to keep this distinction clearly in view. It would be tedious to examine the numerous decisions in detail, and it would not lead to any useful result. I think it may be said that the correct view, and the view for which there is a strong current of the authority, is that where the decree presented or execution was made by a Court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment‑debtor's persons to make the decree if the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdiction. Within these narrow limits I think that the Executing Court is authorised to question the validity of a decree."

We respectfully agree that if a decree is a nullity on account of the death of a necessary party before making of the decree, the trial Court acted without jurisdiction in making decree and Executing Court may refuse to execute such decree.

In the case of Jonab All Khan v. Satish Chandra Roy (43 C L J 110) a Division Bench of the Calcutta High Court consisting of M. N. Mukerji, A. C. J, and S. K. Gose, J. held that where a final decree in a mortgage suit is made after the death of the defendant without effecting substitution of the heirs of the deceased, it is a nullity.

In the case of Amalabala Dasi v. Sarat Kumari Dasi and another (54 C L J 593), a Division Bench of the Calcutta High Court consisting of M. N. Mukerji and S. N., JJ. explained the narrow limits' mentioned in the case of Gora Chand Haldar referred to above and the learned Judges reached the con clusion that the executing Court would be competent to refuse the decree only when the face of the decree it would appear that the Court which passed the decree had no jurisdiction. Learned Judges took into consideration the word "apparently" occurring in the passage quoted above and observed:

"The word apparently' used in connection with the pro sition laid down by this Court, is a word which must always be very careful kept in view. What the proposition means is that the executing Court would be competent to refuse to execute the decree only when on the face of the decree it would appear that the Court which passed it had no jurisdiction. When we say the decree' we mean the decree and the papers relevant for the purpose of under standing it. The proposition does not mean that, if there is a clear statement upon the plaint which gives the Court's jurisdiction to entertain a suit and if upon the basis of that jurisdiction the decree is passed by the Court without there being of a challenge by the defendant as regards the territorial jurisdiction of Court to pass the decree, it remains open to the defendant to the question the Juris diction of the Court after the decree has been made and in the course of its execution. That was exactly what was intended to be guarded against in the decision which the Full Bench passed in the case referred to above."

I would now refer to the case of Basiruddin Fariadar v. Saradindu Narayan Roy and others (60 C L J 102). In that case M. N. Mukerji, A. C. J, and S. K. Ghose, J. held that a decree passed against a dead person was a nullity and could not be executed against the heirs and legal representatives of the deceased. It is further laid down that in such a case the executing Court can go into the question as to whether such a decree was capable of execution. The learned Judges observed:

"We are of opinion that the decree having been passed not against the appellants but against a person whose heirs and legal representatives they are the appellants were perfectly entitled, when they were sought to be brought on the record, to point out to the executable as against them. The proposition that a decree passed against a dead person amounts to nullity is too well settled to admit of any doubt in the present day. The Executing Court, in our judgment, was fully competent to enquire into the question, which arose in the present case. The fact that the judgment‑debtor No. 2 was dead before the decree was passed and the decree was obtained by concealing from the Court the fact that he was dead and getting a false return submitted by the peon cannot be challenged in this second appeal before us. We are of opinion, therefore, that this appeal ought to succeed."

In the case of Ram Khelawan Choudhury v. Ramudar Choudhury (A I R 1939 Pat. 534), it was held that the Executing Court cannot set aside a decree but it is open to that Court to see whether the decree under execution is void, and such a question can be raised in execution proceeding.

A Full Bench of the Patna High Court consisting of Dawson Miller, C. J. and Courts and Manuk, JJ., in the case of Jungli Lall and others v. Laddu Ram Marwari and another (A I R 1919 Pat. 430), held that it was open to the representatives of the judgment debtor to object to the execution of a decree on the ground that the judgment‑debtor was dead at the time the decree was a nullity having been made against a dead person.

In the case of Abdur Rahman and others v. D. Ezrkiel (39 C W N 1284), Penckeidge, J. held that a final decree in a mortgage suit is a decree properly called and as such subject to the ordinary rule that a decree, as against the defendant who was dead on the date it was made, is a nullity.

It will, therefore, appear that there is preponderance of authorities in favour of the proposition that a decree against a dead person whether after the preliminary or a final decree would be a nullity and as such incapable of execution unless substitution of heirs of the deceased party was affected prior to the passing of the decree in question and that the executing Court was entitled to determine as to whether the decree which was sought to be executed was a nullity or not.

In the case of Smt. Pasanda Bibi v. Sk. Sunaraddi and others (4 D L R 157), it was observed by Choudhury, J. (as his lord ship then was) that the remedy of the decree‑holder would be in such a case an application for the review if circum stances for a review exist.

In the case of Moksed Ali Khan v. Katu Khan and others (P L D 1962 Dacca 690), the question as to the executibility of a decree, which was a nullity was considered by a Division Bench consisting of Hasan and, M. R. Khan, JJ. In that case reference was made to the case of Gora Chand and it was observed:

"In our opinion, liberal meaning should be given to the word "apparent" that has been used in the Calcutta Full Bench case referred to above and the executing Court is competent to enter into the question whether decree has been passed against a dead person, as there is no doubt that any decree passed against a dead man is a nullity. And furthermore, if the executing Court is debarred from enter ing into question whether such decree is nullity or not, then many complications may arise and the plaintiff may be encouraged to commit fraud on the Court. It is the duty of the plaintiff to represent before' the Court, in time and before a decree is passed, that a certain defendant or any other party is dead and to bring his heir or heirs on record. In the present case the plaintiff did not take any steps for bringing the heirs of the said defendant No. 16 on record and instead of that, obtained a decree by concealing the aforesaid fact from the Court.

There is, therefore, no doubt now that the decree against a dead person is a nullity. In the process of finding‑ out if a party is dead, it is also to be examined in the ends of justice if the deceased was a necessary party and if so when) he died. It is, in fact, reasonable to think that the question involves a decision as to whether a dead person .was a neces sary party and to that extent an investigation by the Execut ing Court is permissible in order to do complete justice in the matter.

A Division Bench of this Court consisting of Shahabuddin, C. J. and Akbar, J. (as their Lordships then were), considered the question of remedy available to a decree holder in such a situation in the case of Abdul Khaleque Bhuyia and another v. Tafizuddin and others in Civil Revision Case No. 339 of 1948, decided on 29‑5‑50. This decision does not appear to have been reported. In that case an application was filed in this Court against an order of a Subordinate Judge, who rejected an application made under section 151 of the Code of Civil Procedure in which a fresh final decree was prayed for inasmuch as some of the defendants died before the passing of a final decree. The learned Chief Justice, delivering the judgment of the Court observed:

"It is contended on behalf of the petitioners that as the decree-holders were not aware at the time this final decree was passed that one of the defendants had died, it is necessary for the ends of justice that the Court should give relief by setting aside the final decree and passing a fresh decree, after bringing on record the legal represen tatives of the deceased defendant,"

It was further observed:

"In such cases the remedy for the aggrieved party is to appeal, or to apply to the Court by way of review."

The preliminary decree in the instant case was passed after the death of the defendant No. 44, Belatannessa but she was not a necessary party. The preliminary decree cannot therefore, be held to be a nullity owing to the death of defendant No. 44 who is not a necessary party.

Final decree must, however, be held to be a nullity by reason of the death of plaintiff No. 3, Sekandar Bepari and defendant No. 60, Sona Ban and the executing Court could not, in law, grant substitution of the heirs of the deceased parties as was done in this case. It was plainly the duty of the executing Court to hold that the final decree was not execut able and petition under section 47 ought to have been allowed.

In the result, the appeal is dismissed without costs and the execution case also in its turn is dismissed, the petition under section 47 of the Code of Civil Procedure being allowed.

‑I agree.

R. B. A.

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