S.S. Sandhawalia, C.J.
1. In this appeal under clause 10 of the Letters Patent directed againt the judgment of the learned single Judge learned in an execution second appeal, the sole issue is the challenge raised to the correctness of the view expressed in the Division Bench Judgment in Tota Ram v. Kundan AIR 1928 Lah 784 and followed in Ram Briahan v, Kartar Singh, AIR 1969 Punj 214. It is, therefore, unnecessary to notice the facts and it suffices to mention that the sole point herein is whether a decree passed in favour of one of the plaintiffs who had died before the passing thereof (her legal representatives having not been brought' on the record) is a total nullity and, therefore, inexecutable. The learned single Judge following the aforesaid two judgments has held to the contrary and dismissed the appeal.
2. Mr. J. R. Mittal has assiduously sought to assail the correctness of the view in the Ram's case and subsequently followed in Ram Krishan's case, Counsel has been unable to cite any judgment of this Court to the contrary and indeed a Division Bench judgment to which I was a party) in Baldev Singh v. Hira, (1972) 74 Punj LR 422, was also brought to our notice which has held as follows:--
'Even adverting to the contention on behalf of the appellants entirely for the sake of the argument it appears that the adage that a decree against a dead man is a total nullity is not a rule of universal application. In Goda Coopooramier v. Soondarmmalh (1910) ILR 33 Mad 167. the Bench held that a decree passed after the death of the plaintiff was not so absolute nullity and at best may be voidable at his instance. The Bench expressly approved the following statement of the law from 'Black on judgments':--
'The great preponderance of authority Is to the effect that, where the Court has acquired jurisdiction of the subject matter and the persons during the lifetime of a party, a judgment rendered against him after his death is, although erroneous and liable to be set aside, not void nor open to collateral attack.
3. The ratio of the decision above-said wan accepted and followed by Chief Justice Shadi Lal whilst speaking for the Bench in Tota Ram v. Kundan, AIR 1928 Lah 784, where he laid down as follows:--
'I do not think that the decree can be treated as a nullity in the sense that it can be ignored altogether. As pointed out in Goda Coopooramier v. Soondarammall (1910) ILR 33 Mad 167, a decree passed after the death of a party to the suit or appeal is not an absolute nullity. Such a decree is not void nor is it open to collateral attack but it is erroneous and liable to be set aside.'
Similarly in Abdul. Aziz v. Lakhmi Chandra Mujumdar, AIR 1923 Cal 676, one of the respondents had died during the pendency of the appeal but the fact was known to none, and the appeal was heard and disposed of on merits. Mookerjee, J., observed as follows in this context:--
'The fact of the death of one of the respondents to the appeal did not destroy the jurisdiction of the Court. If this Court had been apprised of the true state of facts, no doubt the Court would have made an order of a different description. That very circumstance shows that the jurisdiction of this Court was not ousted by reason of the death of one of the respondents. We are of opinion that the District Judge should not have regarded the order of this Court as if it were null and void, but should have reported the matter to this Court for such action as might be deemed necessary in the events which had happened.'
In view of the above authorities it is not possible to subscribe to any inflexible rule that the death of a party in a civil proceeding would make the judgment given therein a total nullity.'
4. As at present advised, it appears that this view has held sway with in this jurisdiction near for more than half a century. Even otherwise after hearing learned counsel for the appellants at considerable length we find ourselves entirely in agreement with the aforesaid judgments. Both on precedent and also on the rule of stare decisis we see no reason to take a contrary view or raise any doubts about the settled law within this jurisdiction. The appeal, therefore, is found to be without merit and is hereby dismissed. Parties will, however, bear their own costs.
Gokal Chand Mital, J.
5. I agree.
6. Appea1 dismissed.