P L D 1962 Dacca 690 (PLP)

"I think, it may be said that the correct view, and the view for which there is a strong current of authority, is that where the decree presented for execution was made by a Court which apparently have no jurisdiction, whether pecuniary or territorial or in respect of the judgment‑debtor's person to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without jurisdic tion ; within these narrow limits I think that the executing Court is authorised to question the validity of a decree." Relying on the aforesaid passage it is further contended that apparently the decree was not passed against a dead man as defendant No. 16 was shown to be alive, and as such the executing Court cannot allow extraneous evidence to show that defendant No. 16 died on the 8th of July, 1947. The word "apparently" was taken into consideration in the case of Amalabala Dasi v. Sarat Kumar Dasi and another (54 C L J 593) and the following observation was made in that case: ‑ "The word `apparently' used in connection with the proposition laid down by this Court, 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 jurisdic tion. 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 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 the 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." From the aforesaid observation it does not appear that in that case the executing Court was to decide a case where a decree had been passed against a dead person; but we find that the following cases are directly applicable on the facts of the present case. In the case of Hari Bandhu Pal and others v. Hari Mohan Saha and others (34 C W N 36), a Division Bench of the Calcutta. High Court held: "The question is what would happen if a person carrying on business in the name of a firm dies during the pendency of the suit. It cannot be disputed that if a man dies before any suit instituted against him, the suit would be infructuous as having been brought against the dead man who used to carry on business under an alias. As I understand it, the position of a person carrying on business in a firm name is only that of a person who has got an alias and a plaintiff desiring to sue him in his other name. If during the continu ance of the suit that person dies, it is necessary, in my opinion, to bring his legal representative on the record to have a proper decree made in the suit. If the plaintiff fails to do so, then the decree is made against a dead man, having a different name from his own proper name, and in that case the decree would be an absolute nullity ............ The learned Advocate for the respondent, Mr. Roy Choud hury refers to rule (4) of Order XXX and contends that where on the face of it the decree is against a firm and it was not brought to the notice of the High Court that it was a one‑man firm, then rule (4) would apply and the decree should be considered as a valid decree, and he further contends, as the learned Subordinate Judge appears to have held, that the matter whether the decree is a valid decree for a void decree having been passed against a dead man, cannot be enquired into by the executing Court under the authority of the Full Bench case referred to by the Subordinate Judge. In my judgment, the Full Bench case lays down the exact proposition that where the decree is a nullity on the ground that the Court had no jurisdiction, whether pecuniary or territorial or in respect of the judgment‑debtor's person to make the decree, the executing Court is entitled to refuse to execute the decree on the ground that it was made without jurisdiction." The same view was taken by another Division Bench of the Calcutta High Court in the case of Bariruddin Fariadar and others v. Saradindu Narayan Roy and others (38 C W N 1124), wherein it was 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 executing Court that the decree as it stood was 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." In the case of Shivaji Sayaji Gaokar v. Vithal Narayan Mirashi and others (A I R 1927 Bom. 53) a Division Bench of the Bombay High Court held that objection could be taken in execution proceedings that the decree that was passed was null and void in view of the fact the same was passed against a dead person.

5. 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 entering into question whether such decree is a 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 that said defendant No. 16 on record and instead of that, obtained a decree by concealing the aforesaid fact from the Court.

6. As regards the second ground, it has been contended by the learned Advocate for the appellant that as the executing Court, after making a note to the effect that notices were served on the judgment‑debtors, directed that a pleader‑commissioner be appointed to give delivery of possession of the saham lands in terms of the preliminary decree, the question whether the decree is null and void in view of its being passed against a dead person, is barred by constructive res judicata. In support of this con tention, reliance has been placed on the case of Benoyendra Nath Roy Choudhury and others v. Jadav Chandra Roy Choudhury (8 D, L R 147). The learned advocate for the respondents, on the other hand, has contended that the decree being a nullity as the same was passed against a dead person, the provision of Order XXI, rule 22 of the Code of Civil Procedure has no application to the present case, inasmuch as Order XXI provides for a notice to show cause where an application for execution is made more than one year after the date of the decree or against the legal representative of a party to the decree ; and that in this case as the defendant No. 16 having died before the passing of the decree, he cannot be considered a party to the decree and, as such, his heirs cannot be called legal representatives of a party to the decree and are not debarred from raising the objection that the decree is a nullity and hence no question of res judicata arises.

7. The second branch of the argument of the learned Advocate for the respondents is that even assuming that the question of res judicata arises in such a case as above, the order being not a judicial order but an administrative order, no question of res judicata arises and in support of this contention reliance has been placed on the case of Jnonendra Chandra Mazumdar v. Dhirendra Chandra Saha Roy and others (8 D L R 170).

8. A Division Bench of this Court held in the case of Benoyendra Nath Roy Choudhury and others v. Jadav Chandra Roy Choudhury that when an objection under section 47 of the Code of Civil Procedure is dismissed for default by the executing Court and the objection as to the execution proceeding not having been taken at the earliest opportunity soon after the service of notice under Order XXI, rule 66 of the Code of Civil Procedure and the Court after the service of notice having ordered that the execution should proceed, subsequent agitation of the same will be barred by the principle of res judicata. In that case it was also held that the contention as to the applicability of section 69 of the East Bengal State Acquisition and Tenancy Act should be deemed to have been rejected, and that the said contention could not be raised again as the same would be barred by the principle of res judicata. Another Division Bench of this Court held in the case of Jnanendra Chandra Mazumdar v Dhirendra Chandra Saha Roy and others almost under similar circumstances as in the case reported at page 147 of the volume, that there cannot be any estoppel against statute and, as such, the principle of res judicata will not apply though the question about the applicability of section 69 of the East Bengal State Acquisition and Tenancy Act ought to have been raised in the previous application under section 47 of the Code of Civil Procedure ; that in an execution proceeding there can be some automatic and routine or, in other words, administrative orders as well as adjudi cation ; that an order allowing case to proceed is not an adjudica tion, either express or implied ; and that the routine order cannot act as res judicata. It appears that decision in 8 D L R 147, was not drawn to the notice of the learned Judges of this Court who decided the case in Jnanendra Chandra Mazumdar v. Dhirendra Chandra Saha Roy and others. In our opinion, in a proceeding there may be certain routine or administrative order as well as judicial order and the latter may not, in certain circum stances, be allowed to be re‑agitated.

9. Now let us see whether the order appointing a pleader -commissioner to deliver possession of the saham lands in terms of the preliminary decree, is an administrative order or a judicial order and whether the said order debars the agitation of the question that the decree in question was passed against a dead man. It appears from the records that on the 6th of February, 1956, an application for execution of the decree was filed and the Court directed issue of notices under Order XXI, rule 22 of the Code of Civil Procedure fixing 3rd of March, 1947, for return and order. Order No. 2, dated the 3rd of March, 1956, shows that return of notices was not received and 10th of March, 1956, was fixed for summons and orders. From Order No. 3, dated the 12th of March, 1956, it appears that return of service was received and a pleader‑commissioner was appointed court‑guardian on behalf of a minor to submit his report by the 9th of April, 1956. Order No. 4, dated the 9th of April, 1956, shows that the pleader‑guardian submitted his final report stating that the case might be disposed of ex parte as no one on behalf of the minor appeared before him. It further appears from the order, dated 9‑4‑56 that the said report was accepted. On the 20th of April 1956, commission fee of Rs. 30 was deposited but no chalan was received and on the 26th of April, '956, the Court appointed a pleader‑commissioner to give delivery of possession of the Sahara lands in terms of the preli minary decree. In between the first order, dated the 6th of February 1956, and the order, dated the 26th of April 1956, it does not appear that any question as to whether defendant No. 16 was dead or not, was agitated before the executing Court. It further appears that there was nothing on record to disclose to the Court that the decree was passed against a dead person, namely, defendant No.

16. So, in our opinion, though the Court appointed a pleader‑commissioner to give delivery of possession of the saham lands in terms of the preliminary decree on the 26th of April, 1956, the Court was not called upon to decide, nor was there anything on record to draw the attention of the Court, that the decree was passed against a dead person. It further appears from the records that the heirs of the defendant No. 16, who was not a party to the decree as he was dead by the time the decree was passed did not appear before the Court before the 1st of May, 1956, when they entered appearance and filed an objection under section 47 of the Code of Civil Procedure and Miscellaneous Case No. 20 of 1956 was started. In these circumstances, it cannot be said that the Court was called upon to decide and decided, either expressly or impliedly, that the decree, passed as against defendant No. 16, was a valid decree or that the Court rejected the objection of the heirs of defendant No.

16. Further more, non‑appearance of the judgment‑debtor or failure to file objections should not create an absolute bar. But where objections are actually filed and decided, the adjudication is necessarily final. Similar is the case where in the absence of any objection by the judgment‑debtor orders are passed on the application, which makes application fructuous. But at the same time in a case so long a Court is in seizin of the case, the Court may go back upon its own finding. In the present case the order that was passed on the 26th of April, 1956, appointing a pleader‑commissioner to give delivery of possession of the saham lands in terms of the preliminary decree, was nothing but an administrative order and this did not in any way change the' position of the parties. Hence, in our considered opinion, the question of res judicata does not at all arise in the facts and circumstances of the present case. In the result, the appeal is dismissed with costs. Appeal dismissed.