Piggott and Walsh, JJ.
1. This is a decree-holders appeal in an execution matter. Technical questions of law have been raised on both sides, for the determination of which it is necessary to examine carefully and in detail the proceedings of the court below from the date of the institution of the [suit to the passing of the order under appeal. The suit was one on a mortgage. It was instituted on the 12th of December, 1916, and there were a large number of defendants. The case came before the trial court on the 2nd of March, 1917, when it was found that only one defendant, named Nanhu, bad entered an appearance. Service on all the other defendants was found to have been sufficient and an order was passed that the hearing of the suit would continue ex parte as against all these other defendants. Nanhu applied for time, and, it appears, that the hearing of the suit was considerably delayed on this man's application. We are told that the reason for this was that Nanhu was absent on field service, but we are not really concerned with the reason for the delay. It is sufficient for us to note that a preliminary decree for sale under the provisions of Order XXXIV, Rule 4, of the Code of Civil Procedure was finally passed on the 8th of April, 1920, the date fixed for payment being the 8th of October of the same year. On the 8th of November, 1920, the decree-holders presented an. application asking the court to prepare a decree absolute for sale under Order XXXIV, Rule 5, of the Code of Civil Procedure. They recited the necessary fact, that no payment had been made under the preliminary decree. They went on to assert that three judgment-debtors named in the application, had died in the interval since the passing of the preliminary decree of the 8th of April, 1920. The names of two of these persons and the proceedings taken in respect of them are no concern of ours at present. The third judgment-debtor, alleged to have died in the interval between the 8th of April and the 8th of November, 1920, was one Zahiri Mal. In respect of this man it was stated in the decree-holders' application that his legal representative was Narain Das, already impleaded on the record as a defendant in his personal capacity. There ought to have been a formal prayer that the legal representatives of the other two deceased judgment-debtors or defendants should be brought on to the record and that an entry be made on the record that Narain Daa is now impleaded as the legal representative of the estate of Zahiri Mal, as well as in his personal capacity. As a matter of fact the only prayer in the application was that the names of the deceased defendants be removed from the record and a final decree passed against other defendants. This application of the 8th of November, 1920, was supported by affidavit, but the court did not cause notice of the application to issue, either to Narain Das or to the persons named as the legal representatives of the other deceased defendants. Apparently the court acted upon an incorrect and misleading office report, in which it was stated that the legal representatives of the deceased defendants named in the affidavit 'are already on the record.' On the strength of this report the court caused to be passed, on that very same date, namely the 8th of November, 1920, a. decree absolute for sale. In this decree Narain Das appears as a judgment-debtor both in his personal capacity and as representing the estate of the deceased defendant, Zahiri Mal.
2. On the 17th of January, 1921, the decree-holders applied for execution of this final decree, and, on the 18th of February, 1921, Narain Das filed an objection in which he alleged that Zahiri Mal had died prior to the passing of the preliminary decree of the 8th of April, 1920, and contended that the decree, as it stands, is incapable of execution. His prayer was that the application for execution made by the decree-holders may be struck off. In this application to the court Narain Das does not say that he himself is not, in fact, a proper person to be brought on to the record as the legal representative of the estate of Zahiri Mal, or suggest any other person or persons as the proper legal representatives of the said defendant's estate. Further, on that same date, namely the 18th of February, 1921, Narain Das presented another application to the court. This was that the ex parte decree of the 8th of April, 1920, that is to say, the preliminary decree for-sale, should be set aside under Order IX, Rule 13, of the Code of Civil Procedure. It is not clear why he did not apply to have the final decree of the 8th of November, 1920, which was also ex parte as against him, set aside; but the application on the record relates only to the preliminary decree. In this application it was definitely alleged that Zahiri Mal had died on the 28th of May, 1919. The court disposed of the application by an. order of the 27th of June, 1921, It is not necessary for ns to criticize that order, but there can be no doubt as to its meaning and effect. The court noted that in the month of February, 1917, Zahiri Mal had been personally served with notice of the suit. It took up the position that Zahiri Mal having admittedly died on some subsequent date, the burden of proving the date of his death was on the party which asserted that death to have occurred prior to the 8th of April, 1920. It went on to note that Narain Das had laid no evidence before it to prove the allegation that Zahiri Mal had died on the 28th of May, 1919, or was dead when the preliminary decree was passed on the 8th of April, 1920. On this ground it dismissed the application of Narain Das to have the ex parte decree set aside. This order is dated the 27th of June, 1921.
3. About a month later, the court proceeded to dispose of the objection of Narain Das to the execution of the final decree of the 8th of November, 1920. In this proceeding it appears to have taken evidence as to the date of Zahiri Mal's death and records the finding that this defendant had, in fact, died on the 28th of May, 1919. Referring then to the principles laid down in two reported decisions, the court holds, not that the preliminary decree of the 8th of April, 1920, which it had already refused to set aside, is, in any way, defective or inoperative, but that the absolute decree of the 8th of November, 1920, is a nullity and cannot be put into execution. The formal order passed on this finding is that the objection be allowed with costs. Against this order the decree-holders have appealed and they have complicated matters further by electing to implead Narain Das alone.
4. This has obliged us to consider what is the position of the remaining judgment-debtors as matters now-stand. We find that the record shows traces of some intention to proceed with the execution against the judgment-debtors other than Narain Das. But on the 26th of July, 1921, the day after the order allowing the objection of Narain Das, the court records a note to the effect that the decree-holders are taking no steps against the remaining judgment-debtors, and repeats its opinion that the decree is incapable of execution. For these two reasons it orders the application for execution to be struck off without the realization of any part of the decretal money.
5. The decree-holders, in their memorandum of appeal to this Court, have expressly taken the ground that, in any event, the decree under execution could not be treated as a nullity as against the judgment-debtors other than Narain Das. They would undoubtedly have succeeded upon this plea if they had impleaded the remaining judgment-debtors as respondents to the appeal. As the case now stands, we shall have to leave it to them to take action by way of a fresh application for execution in the court below, whereas, otherwise, we should have been in a position to direct that court to re-admit the application of the 17th of January, 1921, on to its pending file and to proceed with it according to law. Otherwise we do not see that their failure to implead the remaining judgment-debtors in this Court affects the position. They have appealed against an order allowing the objection of Narain Das, and none of the remaining judgment-debtors has taken any objection to the execution of the decree. It must not be understood therefore, that the omission of the decree-holders to implead all the judgment-debtors as respondents to this appeal, leaves in existence any order haying the effect of res judicata so as to prevent the execution of this decree against the judgment-debtors other than Naraih Das, upon a fresh application being made.
6. As a matter of fact the court below was not only clearly in error, in our opinion, if it intended to hold, though we are not certain that it did so intend, that the decree was incapable of execution against the judgment-debtors other than Narain Das; but it was also in error in holding that the decree was incapable of execution against Narain Das. Our attention has been drawn to several cases bearing on the question of law dealt with in the judgment under appeal. The case of this Court, on which the court below relies, is that of Sripat Narain Rai v. Tirbeni Misra (1918) I.L.R. 40 All. 423. We have also been referred to decisions of this Court reported in Qutub Ali v. Dwarka Das Weekly Notes 1904 p. 44 and Imam Uddin v. Sadarat Rai (1910) 7 A.L.J. 228. There is also a decision of their Lordships of the Privy Council in the case of Raj Chunder Sen v. Ganga Das Seal (1904) I.L.R. 31 Calc. 487 which has been relied upon on behalf of Narain Das. What distinguishes the case now before us from all these, is the plain fact that the decree sought to be executed, namely, the final decree of the 8th of November, 1920, was not passed against any deceased person. The decree, as it stands, is against Narain Das personally and Narain Das as representative of the deceased defendant, Zahiri Mai. It may be that in passing this decree on the 8th of November, 1920, the trial court acted hastily and upon an affidavit in which an essential fact was incorrectly stated. We have suggested, in our review of the facts, that the trial court was misled by an incomplete and inaccurate office report. It may well be that an application by Narain Das, to have this final decree of the 8th of November, 1920, set aside as against him, would have been a very difficult application for the decree-holders to resist. The fact remains that no such application was ever made and that the attempt made by Narain Das to achieve this same purpose indirectly, by getting the preliminary decree, of the 8th of April, 1920, set aside, was, rightly or wrongly, defeated by the court's order of the 27th of June, 1921. The execution court is bound by the terms of the final decree. The cases which have been relied upon in argument only lay down this principle that if the decree, is against a person who was dead on the date on which the decree was passed, the execution court is entitled to go into the question of the death of the defendant concerned, and, if satisfied that the decree was passed against a dead person, to treat it as a nullity so far as that deceased person is concerned. What we are asked, to do here is to treat as a nullity a final decree for sale which was not passed against a deceased person, but against the respondent Marain Das as the legal representative of the estate of another defendant, Zahiri Mal, who had died pendente lite. The grounds upon which the court below was asked to ignore the terms of tins final decree were that it was based upon a preliminary decree which had been wrongly passed against a deceased defendant, and that the said final decree itself had been based upon an incorrect affidavit of facts and without proper notice to the judgment-debtor principally concerned, namely, the objector Narain Das. These may be good reasons for setting aside the decree of the 8th of November, 1920; but they are not good reasons in law for treating it as a nullity or refusing to execute it according to its terms. For these reasons we allow this appeal and set aside the order under appeal. The record will go back to the court below and it will be for the decree-holders to make such application as they think proper for the further execution of the decree. They are entitled to their Hosts as against Narain Das, in this Court and in the court below.