Muhammad Rafiq and Piggott, JJ.
1. The three execution appeals, Nos. 329, 330 and 271 of 1922, arise out of two pre-emption decrees passed by the lower appellate court on the 9th of April, 1921. It appears that one Damri Singh executed a deed of sale on the 20th of May, 1919, in respect of a portion of his landed property, in favour of Jhinak Singh and Udit Narain Singh. On the 18th of May, 1920, and the 21st of June, 1920, respectively, two suits were instituted by two Bets of plaintiffs, the co-sharers of Damri Singh the vendor, for the recovery of possession of the property conveyed by the sale-deed of the 20th of May, 1919, on the ground of preemption. Ram Baran was the plaintiff in one suit and Ambika Prasad, Ram Charittar Singh and Hubedar Singh were the plaintiffs in the second suit. The vendees resisted the claim by the denial of the custom of pre-emption set up in the two plaints The learned Munsif, in whose court the two suits were filed, came to the conclusion, on the evidence in the case, that no custom of pre-emption prevailed in the village where the property in question was situate. He accordingly dismissed the two claims.
2. Two appeals from the two decrees of the Munsif were preferred to the district court. Ram Baran preferred an appeal from tire decree dismissing his suit, and the other appeal was preferred by Ambika Prasad alone. He, however, stated that he was appealing on his own behalf and on behalf of his two co-plaintiffs, namely Ram Charittar Singh and Hubedar Singh, though he did not make them respondents in the appeal. The two appeals were heard and disposed of together by the learned District Judge, on the 9th of April, 1921. He disagreed with the court of first instance and found that the custom of preemption obtained in the village and decreed the two appeals. In the case of Ram Baran the decree was that he should pay one-fourth of the sale consideration within the specified period and recover possession of one-fourth of the property in suit. In the appeal, of Ambika Prasad the decree was that he (Ambika) and his co-plaintiffs, Hubedar Singh and Ram Charittar Singh, should deposit three-fourths of the sale consideration within the period specified in the decree and recover three-fourths of the disputed property.
3. The decree-holders in the two appeals deposited their respective amounts of consideration money within the prescribed period and were duly put in possession of the disputed property in proportion to the shares decreed to them.
4. Subsequently two applications were made by the judgment-debtors, i.e., the vendees, to the court of the Munsif who had executed the two decrees, asking for restitution of the property on the allegation that the decrees that had been executed were incapable of execution for the reason that Hubedar Singh had died prior to the passing of the decrees by the learned District Judge on the 9th of April, 1921, in the appeals of Ram Baran and Ambika Prasad. The learned Munsif allowed the request of the judgment-debtors to this extent that he restored one-fourth of the property to them, i.e., the share of Hubedar Singh. The judgment-debtors preferred two appeals on the execution side to the court of the learned District Judge. A third appeal was preferred by Ambika Prasad to the same court objecting to the restoration of the share of Hubedar Singh to the vendees, the judgment-debtors. The learned District Judge disposed of the three appeals together by one order. He was of opinion that Hubedar having died prior to the passing of the decree on the 9th of April, 1921, the two decrees in the appeals of Ambika and of Ram Baran were a nullity and, therefore, could not be executed. He allowed the appeals of the judgment-debtors and dismissed the appeal of Ambika Prasad.
5. We have, therefore, three appeals before us, two by Ambika Prasad and one by Ram Baran. We take up the two appeals of Ambika Prasad first.
6. It is contended on behalf of Ambika Prasad that the omission to bring to the notice of the court the death of Hubedar Singh, prior to the 9th of April, 1921, and to bring the legal representatives of Hubedar Singh, deceased, on the record does not vitiate the decrees of the 9th of April, 1921. The right to claim pre-emption was a joint right of Ambika Prasad, Ram Charittar and Hubedar Singh, and, if Hubedar Singh had not joined in the suit or if he had died prior to the passing of the decree, the right of pre-emption remained infect with Ambika Prasad and Ram Charittar. It is further urged that it was the duty of the vendees judgment-debtors to call the attention of the learned District Judge to the omission by Ambika Prasad to bring the legal representatives of Hubedar Singh on the record and to have the decree amended. The vendees could not object nor could the executing court decline to execute the decree of the 9th of April, 1921, as it stood. If is argued that a court executing the decree cannot go behind the decree. If there is any legal defect in the decree, it is not for the executing court to rectify it but the proper course is to ask the court which has passed the decree to amend or rectify it.
7. On the other hand, the argument for the vendees is that the decree against a dead person is a nullity. Further, it is said that the right of pre-emption was not a joint right of Ambika Prasad, Ram Charittar and Hubedar in the sense that if one fell out or declined to sue or died during the pendency of the suit, the right survived to the other two. Nor was it a right that was so divisible that Hubedar's share could be described as one-fourth. In any case, strong stress is laid upon the fact that the decree of the 9th of April, 1921, in the appeal of Ambika Prasad was passed after the death of Hubedar, and, therefore, it is a nullity.
8. In support of this contention reliance is placed on the case of Imam-ud-din v. Sadarath Rai (1910) I.L.R. 32 All. 301. That case is a converse of the present one. In that case the decree was passed by a Bench of this Court in ignorance of the fact that one of the respondents was dead. Subsequently an application was made for review and the question was raised whether the decree was a good and valid decree. It was held by two learned Judges of this Court that the decree having been passed against the respondents after one of them had been dead, it was a nullity. It might, however, be argued on behalf of Ambika Prasad, that the principle underlying that decision does not apply to his appeal inasmuch as the decree against the vendees could not be split up, as the shares of the vendees perhaps wore not specified in the sale-deed. In the present case Ambika Prasad is not seeking to split up the shares of the vendees but is enforcing his right of pre-emption which he had jointly with Charittar and Hubedar against three-fourths of the disputed property. This objection is sufficiently met by another case, that of Balaram Pal v. Kanysha Majhi and Ors. (1919) 53 Indian Cases 543. This case seems to us to be absolutely in point. It was laid down there that where one of several plaintiffs prefers an appeal in which the other plaintiffs are also interested, Rule 4 of Order XLT of the Code of Civil Procedure does not authorize him to proceed with the appeal without making the other plaintiffs parties thereto. Further, it was laid down that the effect of allowing an appeal to be heard and a decree passed in ignorance of the death of one of the joint plaintiffs is to render the judgment and decree a nullity. We, therefore, are of opinion that the decree in favour of Ambika Prasad, Ram Charittar and Hubedar, having been passed after Hubedar had died, was a nullity and was not capable of execution. The vendees are entitled to be restored to the three-fourths of the disputed property. The appeals of Ambika Prasad, therefore, fail and are dismissed with costs.
9. The appeal of Ram Baran stands on quite a different footing. He had brought a separate suit in the court of the learned Munsif, and, on his claim having been dismissed, had preferred a separate appeal. It is true that his appeal and that of Ambika Prasad were heard together and disposed of by one and the same judgment by the learned District Judge, but he was decreed one-fourth share of the disputed property on the payment of one-fourth of the sale consideration. He had mentioned in his memorandum of appeal that Hubedar was dead and he was going to bring the legal representatives of Hubedar on the record as respondents in the case. Hubedar was merely a pro forma defendant in the suit in the court of the Munsif and, in the appeal of Ram Baran Hubedar would still have been a pro forma respondent. The omission by Ram Baran to bring the legal representatives of Hubedar on the record as respondents to his appeal would not affect the merits of his appeal. We, therefore, think that any illegality in the decree of Ambika Prasad would not affect the decree in favour of Ram Baran. The order of the learned District Judge allowing restoration to the vendees in respect of the share decreed to Ram Baran, i.e., one-fourth of the disputed property is erroneous. We, therefore, allow the appeal of Ram Barart with costs and set aside the order of the learned District Judge with regard to Ram Baran's share.