Ram Khelawan Choudhury vs Ramudar Choudhury

Dhavle, J.—This is an appeal-by the judgment-debtor who applied u/s 47, Civil P.C., for setting an execution sale aside on the ground that the decree, in execution of which the sale had been held, was null and void, as the plaintiff had died before the hearing and decision of the suit. The application was allowed by the trial Court, but on appeal the lower Appellate Court held that the decree was only voidable at the instance of the plaintiff''s representatives, that having been passed for the amount admitted by the defendant, there was no prejudice done to this party, and that therefore the sale ought to stand. The facts have been found beyond dispute. The plaintiff died in Benares on 20th May 1934, while the suit was heard on 22nd May 1934, and decreed on the 25th of that month for the amount admitted by the defendant. The decree was afterwards assigned by the widow of the plaintiff to Ramudar Choudhury, respondent before us, who executed the decree and brought the judgment-debtor''s property to sale on 27th July 1936, and purchased it himself. The judgment-debtor''s application, out of which the present appeal arises, was made on 23rd August 1936, and also asked for setting the decree aside, a prayer which must, as it stands, be ignored.

The executing Court cannot set aside a decree. But it is open to the executing Court to see whether the; decree under execution was or was not null and void: Jungli Lall v. Laddu Ram Marwari A.I.R (1919) Pat. 430. It has been con. tended on behalf of the appellant that the view of the learned Subordinate Judge on the authority of Coopooramier v. Soondarammull (1909) 33 Mad. 167, that a decree in favour of a dead person is not a nullity but is only voidable at the instance of his legal representative is erroneous and opposed to a decision of the Bombay High Court in Vishvanath Dynanoba v. Lallu kabla (1909) 11 BomL.R. 1070 and should not be accepted as the Bombay decision was referred to with approval in our Full Bench decision in Jungli Lall v. Laddu Ram Marwari AIR (1919) Pat. 30, to which I have referred. What was held in the Bombay case was that a Court has no jurisdiction to make a decree whether against or in favour of a deceased person, with the sole exception of the special case provided for in Order 22, Rule 6, where one of the parties dies after all that the parties are required to do has been done in the case and there is an adjournment merely for the purpose of enabling the Court to prepare and pronounce its judgment. The actual decision in Coopooramier v. Soondarammull (1909) 33 Mad. 167 was that where a decree had been passed in favour of a deceased plaintiff on the day of his death, which occurred before the case was taken up for disposal and heard, his representatives were barred from bringing a fresh suit on the same cause of action and for the same relief.

In support of this decision the learned Judges referred among other things to the provisions of Section 371, Civil P.C. of 1882, and Order 22, Rule 9 of Civil P.C., now in force. They also referred to the English view that a suit abates on the death of a party and the American view to the contrary. I am not sure that those observations were not really mere obiter in the circumstances of the case. Nor do the learned Judges refer to the question of jurisdiction on the death of a party in circumstances other than those dealt with in Order 22, Rule 6. Several other cases have been referred to before us, but it does not seem necessary to deal with them, for they are easily distinguishable on the facts. Vellayan Chetty v. Mahalinga Aiyar A.I.R (1916) Mad. 574, for instance, is distinguishable on the ground that it was a case of the death of one of the defendants and not of the sole defendant, and it is obvious that where one of the defendants dies, the death need not be any reason for the suit to abate against the living defendants as well. The question is one of jurisdiction as was pointed out by Chandavarkar J. in Vishvanath Dynanoba v. Lallu Kabla (1909) 11 BomL.R. 1070, and therefore it is immaterial that the decree was passed for an amount which was admitted by the respondent. In my opinion, the decree was a nullity and must be treated as such in the execution proceedings.

The learned advocate for the auction, purchaser respondent endeavoured to support the order of the lower Appellate Court on the authority of cases like that of Vellayan Chetty v. Mahalinga Aiyar A.I.R (1916). Mad. 574 and on the additional ground that the judgment-debtor''s application u/s 47 was itself not competent. He should have applied, so it was argued, before the property was sold in execution, and in support of this contention Beni Madhab Roy v. Bisseswar Bharati (1912) Cri.L.J. 542 was cited. But it has been found as a fact in the present case that the judgment-debtor only came to know of the death of the plaintiff on 14th August 1936, more than three years after the decree and more than a fortnight after the execution sale itself. It is impossible in such circumstances to hold that the judgment-debtor ought to have objected to the execution before the sale.

Some question was also raised regarding whether the judgment-debtor should proceed by application or by suit in the circumstances of this case. It does not seem to me necessary to deal with this question either in view of the provisions of Sub-section 2 of Section 47, Civil P.C., for it has been definitely ruled in this Court that the question whether a decree is null and void on the ground of the death of a party can be raised in execution, and I am not prepared to hold that in the circumstances of this case where the judgment-debtor only became aware of the nullity of the decree after the sale but before the last date on which he could have applied under Order 21, Rule 90, for having the sale set aside on any ground indicated in that provision of the law, the judgment, debtor has lost his right to object in execution because the sale has already taken place but has not been confirmed.

I would therefore allow this appeal with costs, set aside the decision of the lower Appellate Court and restore that of the trial Court.

Rowland J.

I agree.