Amberson Marten, kt., C.J.
1. In this second appeal we think that the learned District Judge was quite right in holding that the decree passed in the original partition suit was a nullity, be far as regards defendant No. 3, Narayan Rukhmaji Mirasi, and his representatives, on the ground that before the hearing of the suit was concluded Narayan died, and his legal representatives were never pub on the record. It is clear, when the record is looked at, that the trial Judge's view that the hearing had in fact been concluded prior to the death of Narayan cannot be supported,
2. It is, however, argued on behalf of the plaintiff that this objection cannot be taken in darkhast proceedings, but must be taken in a separate suit, and for that purpose a decision of Sir Basil Scott and Mr.. Justice Batchelor in Hari Govind v. Nar-singrao Konherrao I.L.R. (1013) 38 Bom. 194 is relied on. But that was a case of jurisdiction, viz., whether, having regard to the Court of Wards Act, the trial Court had power to pass the particular, decree which it did. It was held that this was a matter which could not be inquired into by the Court to which the decree had been sent for execution, but that under Order XXI, Rule 7, the executing Court was bound to assume the validity of the decree. In particular it was pointed out that certain words referring to the jurisdiction of the Court had been excluded when passing the new Order XXI, Rule 7, as compared with the provisions of the previous Code,
3. In the present case, the decree has not been sent to another Court for execution, nor does the point arise as to whether the Court has jurisdiction, having regard to the terms of some particular Act, to pass the particular decree that it did. The question here is whether the decree was a nullity, being a decree against a dead man. Accordingly, in Sripat Narain Rai v. Tirbeni Miara I.L.R. (1918) All. 423 which was decided by Sir Henry Richards and Mr. Justice Banerji, it was held that an objection of that nature could be taken in darkhast proceedings.
4. In this respect we have been referred to Section 47 of the Civil Procedure Code, and to the notes in Mr. Mulla's text book on that Act at p. 124, where the learned author states : 'Having regard to the decisions that questions relating to the validity of a decree cannot be tried in execution proceedings, but must be decided in a regular suit, the procedure by suit would appear to be the proper one.' But here, as I have already said, it is a question of the decree being a nullity.
5. Two cases in this Court deal with the proper procedure to be t adopted where either pending an appeal or after an appeal an appellant dies. In Janardhan v. Ramchandra I.L.R. (1901) 26 Bom. 317 the lower appellate Court refused to add the heirs of a deceased appellant. The High Court held that this refusal was wrong, and, accordingly, they directed the heirs of the appellant to be added on the appeal. In Amarsangji v. Desai Umed (1924) 27 Bom. L.R. 91 some curious circumstances had occurred. There the lower appellate Court had dealt with an appeal in ignorance of the fact that the appellant was dead, and had decided it in his favour. The defeated defendant in continued ignorance of the facts had brought an appeal against the successful deceased. The view that this Court took was that, under these circumstances, it was not for the High Court to put the mistake right, but that the heirs of the deceased man must apply to the lower appellate Court for leave to set aside the abatement and to be added as appellants and for the appeal to be re-heard. The Court in that case treated the decree passed by the lower appellate Court as being a nullity, having been passed in favour of a dead man. I should add that in that case there were applications to the High Court for orders to make the heirs of the defendant parties. Those applications were remanded by us to be dealt with by the lower Court.
6. Those two oases, therefore, may be cited for the view that a decree passed against a dead man is a nullity, and that it is not essential for a separate suit to be brought to challenge the fact.
7. Then the appellant before us cited Lakhmichand Rewachand v. Kachubhai Gulabchand (3) I.L.R. (1911) 85 Bom. 393 to induce us to add now the heirs of defendant No. 3. But all that case decided was that not withstanding the Limitation Act the Court had power to make the necessary amendment, although the ordinary application to set aside the abatement was barred under Article 171 of the Limitation Act. But there, it is to be observed, Sir Basil Scott says :-
It is obvious, however, that in a partition suit all the parties should be before the Court.
8. By way of warning I may add that, though this may be the Indian practice, it is not the practice on the Chancery Side. There it is not essential that at the first hearing all parties should be before the Court, The practice at the trial is merely to make a preliminary order for enquiries by the Master, and then the judgment has to be served on all persons affected who are not already parties.
9. In the result, therefore, we consider that on the present darkhast it was open to the Court to deal with the contention of defendant No. 3's representative that the decree was a nullity against him and that it was not; necessary for a separate suit to be brought in that respect. That contention once made must necessarily succeed. It follows, therefore, that, in our judgment, the appeal must be dismissed with costs.
10. But we think it fair to add this. It is represented to us that the order actually made by the Courts below is that the whole darkhast is dismissed, that is to say, not only against defendant No. 3 but against all the other parties, and that this is done on the basis that the whole decree is bad not only against defendant No. 3 but against all the other parties. On the other hand, we have not got all the other parties before us. Accordingly, although we accept the contention of defendant No. 3 that the decree is a nullity so far as regards him, we say nothing for the moment as to whether it is also a nullity as regards the other parties. If, however, the decree is an entire nullity, then it would seem only fair that the plaintiff should have an opportunity of the re-trial of this suit, for in that event we would have a suit which had never been properly determined by a final decree.
11. In saying this we express no opinion as to what particular course the trial Court should adopt. If any application to that effect should be brought before it, it will essentially be a matter for the trial Court to decide. We in no way wish to prejudge the issue, but we think it should be clear that our present judgment dismissing the appeal is without prejudice to any application by the plaintiff to apply to the Court of first instance to set aside the abatement, if any, caused by the death of defendant No. 3, and to add Mr. Shingne's clients or the other heirs of defendant No, 3, as defendants to the suit, and for an order that the suit be set down for a re-trial and a re-hearing on the footing that the decree passed on October 9, 1922, was a nullity. It will be for the Court of first instance to say, as I have already pointed out, whether and to what extent that application should be granted, and whether, for instance, it can be successfully urged by the other parties that the decree, at any rate, is good as between them and the plaintiff whatever may be the result as between the plaintiff and defendant No. 3, Or, again, in this latter event it will be for that Court to consider what should be in that event a proper order to make as between the plaintiff and the representatives of defendant No, 3 to settle any matters there may be in dispute between them in relation to the partition which is being claimed in the suit,
1. I would just add a few words regarding the Allahabad case, namely, Sripat Narain Rai v. Tirbeni Misra I L.R (1918) AIL 423. It may be noted that in that case the lower appellate Court dismissed the application for execution as against the sons of Bindeshri as his legal representatives ; that is to say, the application was dismissed only as against the sons of the deceased man. Referring to this point the learned Judges in that case observed : ' We express no opinion as to what the effect of the execution of the decree against the surviving defendants will be.' Of course the effect of holding that a decree is a nullity as against the heirs of one defendant may be different in different cases. In this particular case, where a partition between the plaintiff and the different defendants is involved, the fact that the decree was a nullity against the heirs of one defendant aflects the whole decree, whereas in another case, such as that dealt with in Sripat v. Tirbeni, the result might be different. In Sripat v. Tirbeni the reason for distinguishing it from Hari Govind v. Narsingrao Konherrao I.L.R. (1913) 38 Bom. 104 was brought out in the judgment where the learned Judges observed (p, 423) :
It is contended that there has been a change in the new Code of Civil Procedure by the omission from order XXI, Rule 7, of the word ' jurisdiction,' We think that this alteration in no way modifies the authority of the case to which we have referred. No question of ' jurisdiction ' of the court to make the decree arises because no court can make a decree against a dead man ; and a decree so made is a nultity.
2. Without, therefore, specially referring to the Bombay case, the Allahabad Judges have, in fact, distinguished the Bombay case ; and their decision is a clear ruling to show that in this particular instance the decree must be a nullity as against the heirs of defendant No. 3.