Arunachalam Chetty vs Abdul Subhan Sahib

Madhavan Nair, J.—The decree-holder in S.C.S. No. 3863 of 1919 on the file of the Court of Small Causes, Trichinopoly, is the petitioner.

He obtained a decree against the respondent. The respondent was a minor and was not represented in the suit in which the decree was passed

against him. In execution of the decree, the petitioner arrested the respondent and then the amount mentioned in the warrant was deposited by his

surety in the Court and he was set free. An application was filed by the minor respondent asking the Court not to allow the petitioner to take the

money on the ground that, at the time when the decree was passed, he was a minor and as such the decree was a nullity and not binding on him.

The Lower Court, accepting this contention, allowed his prayer and the present Civil Revision Petition is filed against that order.

On behalf of the petitioner, it has been contended before me that the Court below as an executing Court was bound to execute the decree as it

stood and was not entitled to go behind the decree questioning its validity. In support of this contention reliance has been placed by the learned

vakil for the petitioner on the decision in Kalipada Sarkar v. Hari Mohan Dalai ILR (1921) Lab 357 In that case the plaintiff was a lunatic and was

represented by his wife. The suit was dismissed and costs were allowed to the defendant. Execution was sought against the plaintiff''s son, the

plaintiff having died in the interval. In the execution proceedings the lunatic''s widow was appointed guardian ad item and she objected that when

she was appointed guardian for the lunatic in the suit, she was a minor. The executing Court overruled this objection. On appeal, the High Court

affirmed this decision. In the course of the judgment in that case, the learned Judges made the following general observations which have been

strongly relied upon before me:

It is indisputable that: the Court executing a decree must take the decree as it stands and has no power to go behind the decree or to entertain an

objection to the legality or correctness of the decree.

This case has been referred to and distinguished by the Patna High Court in Jungli Lal v. Laddu Ram Mariwari (1918) 46 IC 269 In that case it

was held that when at the time of passing a final decree in a mortgage suit one of the judgment-debtors was dead and his representatives had not

been brought on record, it was open to such representatives to object to the execution of the decree on the ground that the decree was a nullity.

The learned Judges base their decision on the ground that there is a well-known distinction between voidable decrees and decrees which are

absolutely void and since the decree passed against a dead person is a void decree, it was their opinion that the question of validity of the decree

might be relied in execution proceedings. The correct significance of the decision in Kalipada Sarkar v. Hari Mohan Dalai (1921) 2 Lab 357 is

pointed out by the learned Judges by drawing attention to the concluding sentence of the judgment in that case, which runs as follows:

This, no doubt, assumes that there is a valid decree in existence, that is, an adjudication by a Court of Justice, a decree or order, which has not

ceased to be operative and is capable of execution.

The question therefore to be considered is, whether in the case before us, it can be said that there is an operative decree or a decree which is

capable of execution. It has been held in Subramania, Aiyar v. Faithianatha Aiyar (1914) 1 IW 877 that in a case where a decree was passed after

the death of the defendant and before the legal representatives were brought on record, that the objection raised really related to the jurisdiction of

the Court that passed the decree and it might well be considered u/s 47, Civil Procedure Code. As the decree is a void decree, it might be

disregarded altogether without talcing any proceeding to set it aside.

On the authorities, therefore, it seems to me that the Lower Court was right in allowing the respondent to raise the question u/s 47 of the Civil

Procedure Code. Arguments based upon the policy of Section 47 might be put forward in support of the arguments advanced on either side. In my

opinion the Lower Court''s decision is right and I dismiss this petition with costs.