1. This appeal arises out of a suit for a declaration that a mortgage-decree obtained by the defendants against the father of the plaintiffs was null and void as against the plaintiffs.
2. The defendants obtained a preliminary decree against the plaintiffs' father alone without making the plaintiffs parties to the suit. After the passing of the preliminary decree, and before the final decree was passed, the plaintiffs' father died and the plaintiffs were substituted as legal representatives of their father, After the plaintiffs had been thus impleaded as legal representatives the final decree was passed ex parte Subsequently the plaintiffs applied to set aside the ex partedecree and upon its being set aside they raised objections to the preparation of the final decree. They objected that they were not legal representatives of their father, Ram Lal, and proceeded to attack the mortgage-decree on the ground that the mortgage was without consideration and without legal necessity. The Court decided that the plaintiffs were the legal representatives of their father and held that it was not entitled to go into the question of consideration and legal necessity for the mortgage and accordingly disallowed the objection and ordered the preparation of the final decree. The plaintiffs did not appeal against the final decree but instituted the present suit for a declaration that the decree was not binding upon them. Their claim has been decreed.
3. The defences with which we are concerned in second appeal are that the suit was bar red, firstly, by the rule of res judicata, and secondly, by the provisions of Section 47 of the Code of Civil Procedure.
4. Both the Courts below have found these points against the defendants, who are the appellants before us.
5. The only question which we have to consider in second appeal is whether the suit was barred on either of the grounds suggested.
6. As regards the question whether the suit was barred by the rule of res judicata the learned Counsel for the appellants contends that the final decree was passed against the plaintiffs themselves who had been impleaded as legal representatives of their father and that as they have not appealed against the final decree they are bound by it and are not entitled to challenge it by a separate suit.
7. The question, on its merits, depends upon whether the Court at the time of passing a final decree was entitled to go behind its own findings in passing the preliminary decree. In our opinion the Court was right in holding that at the time of the passing of the final decree it had no power to go behind the preliminary decree in which the rights and liabilities of the parties had been determined. At the time of passing the final decree the Court's powers are limited to acting in accordance with Order XXXIV, Rule 5. Where it is found that payment has not been made of the sum specified, then the Court is bound to pass a decree that the mortgaged property or a sufficient part thereof be sold. We hold that the Court in taking action under this rule is not empowered to re-open the questions which have already been determined by the preliminary decree, As the Court in passing the final decree had no power to decide the questions which were raised by the plaintiffs in the present suit we hold that the rule of res judicata does not apply.
8. The next question is whether the suit is barred by the provisions of Section 47 of the Code of Civil Procedure Here again we think there is no force in the appellants' contention. The questions which are now raised in the present suit go to the root of the mortgage-decree. They are not questions which merely relate to the execution, discharge or satisfaction of the decree. The questions, if decided in the plaintiffs' favour as they have been, go behind the decree itself and could not be determined by an Execution Court under Section 47.
9. The Counsel for the respondents has also pointed out that his suit was instituted in the Court executing the decree and the Court could have treated the suit as a proceeding under Section 47 if it thought fit. In any case there is no force in the contention that the suit was barred by Section 47.
10. Agreeing with the Courts below we dismiss the appeal with costs.