1. In this case there was a decree passed in favour of the father of the present respondents on the 29th of June 1907, though he had died on the 28th April 1907, and his sons, the present respondents, had not been brought on the record as his heirs and legal representatives. The appellant, however, presented an appeal against the decree but withdrew it. They then applied for execution of the decree.
2. The appellant resisted the application on the ground that the decree, having been passed in favour of the plaintiff who was deceased at its date, was a nullity and, therefore, incapable of execution.
3. Both the Courts below have allowed execution but, I think, wrongly. A Court has no jurisdiction to make a decree Whether against or in favour of a deceased person.
4. It is urged, however, by Mr. Dandekar, the learned pleader for the respondents, that this rule of law is subject to an exception stated at page 97 of Broom's Legal Maxims,' 11th Edition, where under the legal maxim an act of the Court shall prejudice no man' it is said: 'In virtue of it where a case stands over for an argument from term to term on account of the multiplicity of business in the Court, or for judgment from the intricacy of the question, the party ought not to be prejudiced by that delay, but should be allowed to enter up his judgment retrospectively to meet the justice of the case, and, therefore, if one party to an action died during a curia advisari vult, judgment may be entered nunc pro tunc, for the delay is the act of the Court, and, therefore, neither party should suffer for it.' This exception to the general rule of law that a Court has no jurisdiction to pass a decree against or in favour of a deceased person is embodied in Order XXII, Rule 6, of the present Code of Civil Procedure. But the exception applies only where the death has taken place between the 'conclusion of the hearing and the pronouncing of the judgment,' and that because, after the hearing has concluded and the case stands adjourned merely for judgment, the delay is the act of the Court and should not operate to the prejudice of any party to the suit. Accordingly in Chetan Charan Das v. Balbhadradas 21 A. 314 it was held that where in a suit a party dies after everything to be done by the parties has been done and nothing remained except the delivery of judgment, which had been reserved by the Court, the judgment, and decree should be entered nunc pro tunc.
5. But it was not so in the present case. After the evidence had concluded on the 9th of April. 1907, the case; at the instance and on the application of both parties, was adjourned for arguments till the 24th June 1907, and in the meantime, that is, on the 28th April, the plaintiff died, so that it cannot be said that the hearing, had concluded. Something had to be' done by the parties, namely arguments had to be addressed to the Court. The case stood over, not 'on account ot the multiplicity of business' in the Court but for the convenience of the parties.
6. But it is argued that the present appellant is estopped from raising the contention that the decree was passed without jurisdiction, because after the decree had been made the present appellant filed an appeal against the decree and subsequently he withdrew it. No doubt the withdrawal of an appeal creates a bar, but that is only where there is an appeal in the legal sense of the term. An appeal from a decree means one against a decree that is not a nullity, Here the appeal withdrawn had no decree to rest upon or contend against. The withdrawal could not operate to the prejudice of the party who had preferred the appeal. On these grounds the decree must be reversed and the darkhast dismissed with costs throughout upon the respondents.
7. I notice that the Subordinate Judge, First 'Class with appellate powers, has based his decision, a decision from which we differ, partially on the ground of waiver which may or may not be deserving of attention. But that ground was not taken in argument here, and, therefore, it is unnecessary to discuss it. It appears to me that the circumstances in which the decree of the first Court was made are such that we cannot apply the principle formerly accepted and now embodied in Rule 6 of Order XXII of the Code of Civil Procedure. The decree was absolutely a nullity and could only have. had validity, if it could have dated back to a time prior to the plaintiff's death. This, as already explained, could not be as there was no delay on the part of the Court which led to the decree being made after, the plaintiff died. Therefore, there was nothing that could be executed, and the application to execute must be rejected.