1. This is a second execution appeal arising out of the following circumstances. One Mr. E.A. Hilt mortgaged property in favour of Devi Prasad, predecessor-in-interest of the judgment-debtor-appellant Radha Mohan, for Rs. 5000. On 12th April 1939, Mr. Hilt died leaving him surviving a widow, sons and daughters. Mr. Hilt had previously on 30th November executed a will by which he appointed his widow and one of his daughters, Miss I. B. Hilt as executors. On 20th November 1989, the surviving members of the family, the widow, the sons and the daughters, instituted a suit for redemption of the mortgage and in this suit they made no mention, we are informed, of the existence of the will. In this suit the successors-in-interest of Mr. Hilt claimed that the amount of the mortgage had been overpaid and they claimed a refund of the amount overpaid, and on 1st March 1940, they obtained a decree for redemption and also for refund of the sum of Rs. 3540, the suit having been decreed ex-parte. The judgment-debtor instituted proceedings to set aside the ex parte decree, but failed right up to this Court to get the decree set aside.
2. On 6th July 1940, an execution application was filed by the decree-holders. In answer to this objections were filed under Section 47, Civil P.C. on 4th November the main contention being that the decree was null and void because of the provisions of Section 214, Succession Act. As a result presumably of these objections, an application was made by the executors for probate of the will on 11th March 1941, and on 22nd August the executors obtained probate. A year later, on 11th September 1942, the Munsif dismissed the objections under Section 47 and held that the decree was not a nullity and directed that execution should proceed. The matter was taken in appeal to the District Judge who dismissed the judgment-debtor's appeal on 8th March 1948. On behalf of the judgment-debtor-appellant Mr. Mukhtar Ahmad has sought to argue that the decree of 1st March 1940, is a nullity because Section 214, Succession Act, provides as follows:
No Court shall pass a decree against a debtor of a deceased person for payment of his debt to a person claiming on succession to be entitled to the effects of the deceased person or to any part thereof, except on the production by the person so claiming of a probate or letters of administration evidencing the grant to him of administration to the estate of the deceased.
3. Mr. Mukhtar Ahmad has referred us to various eases of the Bombay and 6ther High Courts, in none of which, however, has it been held that a decree granted by a Court in disregard of the provisions of Section 214, Succession Act, is a nullity; for example, in Raichand Dhanji v. Jivraj Bhavanji ('32) 19 A.I.R. 1932 Bom. 13 it was held that under Section 213, Succession Act, the grant of probate of a will is not a condition precedent to the institution of a suit for claiming a right as executor or legatee under the will. A legatee or executor can file a suit without obtaining probate, but he will not be entitled to a decree unless probate has been granted to him before the passing of the decree. That really amounts only to re-stating the provisions of Section 214. Other cases referred to us also seem to us to do little more than re-state the provisions either of Section 213 or of S.214, and for ourselves, we find it impossible to see how a decree obtained in the manner in which this decree has been obtained can be a nullity. No doubt the decree might have been set aside in appeal and it is just possible that a suit might have been instituted to set it aside, but that is quite a different thing from saying that the decree in such a suit is a nullity. The decree is analogous to one which is based on a wrong view of the law. No one would, we think, venture to suggest that a decree which was given on the basis of a time-barred debt was a nullity, though such a decree could certainly be set aside in appeal and it is quite clear to us that an objection of that kind could not be entertained by an executing Court. We are fortified in the view we take of the decree in the present case by the decision of a Division Bench of the High Court of Bombay in Abdul Majid v. Sham-sherali Fakruddin ('40) 27 A.I.R. 1940 Bom. 285 in which the learned Chief Justice, who pronounced the judgment of the Court, remarked:
The provisions of Section 214, Succession Act, are no more peremptory than the provisions of Section 85, Stamp Act, or Section 49, Registration Act, which forbid the Court to receive certain documents in evidence. If the Court does, in breach of those provisions, improperly receive documents in evidence, that is an error which can be corrected in appeal, but it does not render the decree a nullity. In the same way the omission to obtain a succession certificate is a good ground of appeal, but if the decree is not appealed from in my opinion it remains a valid decree and cannot be regarded as a nullity.
4. Nothing that learned Counsel has said in argument can lead us to a different conclusion. We are quite clear that the Courts below have rightly held that this decree is not a nullity and have rightly, therefore, directed that execution should proceed. The learned District Judge has remarked at the end of this judgment:
It however appears that only two out of the eight respondents have obtained probate of the will and they are obviously the only persons who can execute the decree and an application for the execution of the decree by all the eight respondents is not in order but presumably the lower court will not proceed with the execution of the decree unless the application is properly amended.
5. These remarks are of course obiter and we do not think that they are really correct in the situation as it stands that the decree was obtained by, eight persons all of whom were entitled to execute it. At the same time we should certainly have been inclined to advise the decree-holders to act accordingly, and to suggest that only the two executors appointed under the will should execute the decree, because they are the persons who have to account to the District Judge in the probate proceedings. We understand from learned Counsel that the advice is in fact unnecessary because action has already been taken on those lines in consequence of the remarks made by the learned District Judge. For the reasons given above we find no force in this appeal and dismiss it accordingly with costs.