P L D 1969 Dacca 658 (PLP)

"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. A. H. KHAN, J.‑I agree. R. B. A. Appeal dismissed.