1. The facts antecedent to this appeal are fully set out in the order of the Subordinate Judge in M.P. No. 991 of 1920 printed in C.M.A. No. 33 of 1921. The short question before us is this; In a mortgage suit (Original Suit No. 34 of 1911, Plaghat Sub-Court) on which a preliminary decree for sale had been passed in 1911, the 4th defendant died in April 1912; the final decree was dated 30th January 1913. No legal representative was brought on the record in the application for a final decree and no such application for the per pose of bringing him on was in fact made till September 1916, when notice was issued to 5th respondent (4th defendant's son) in connection with a petition (M.P. No. 2348 of 1916) for transfer of the decree for execution to the Coimbatore Sub-Court to show cause why he should not be brought on as legal representative of his father. The notice was affixed but the son did not appear. The decree was transferred from Palghat to Coimbatore for execution, and in September 1917 the plaintiffs applied for execution and brought certain properties in Pollachi to sale. In March 1918 the 5th respondent instituted the suit (original suit No. 204 of 1918) of which this is the second appeal, for a declaration that the decree was not binding on him and for an injunction to restrain plaintiffs (in the mortgage suit) from executing it on his allegation that he came to know of the decree in February 1918. The District Munsiff dismissed the suit; the District Judge reversed the District Munsif's decree and granted an injunction, holding that the decree was a nullity as fat as plaintiff was concerned owing to the failure to bring him on record when the final decree was passed in Original Suit No. 34 of 1911. Hence this second appeal. The question is, was the learned District Judge right in the view he took of the law.? Mr. Ramachandra Iyer's first point for the appellants is that plaintiff should have pleaded abatement of the suit as far as he was concerned at the earliest moment, i.e., in M.P. No. 2348 of 1916 - September 1916, when plaintiffs in original suit No. 34 of 1911 applied to have him brought on record as legal representative of the 4th defendant and that his failure to thus plead in 1916 bars him as it operates as res judicata. Mr. Ramachandra Iyer admits that Section 11 of the Code of Civil Procedure does not apply in terms but he says the principle does and quotes the 4th explanation to the section. It appears to me that the very words in the section itself 'in issue in a former suit' which prevent the section applying would also prevent the explanation applying as the words 'former suit' are repeated in the explanation, The Privy Council case in Mungal Pershad Dichit v. Grija Kant Lahiri I.L.R(1881) . Cal. 51, is relied on for the position that a judgment debtor not having appealed from an order of attachment as being time-barred but in fact having acknowledged its validity cannot be heard to say that after that the decree was dead at the time the order for attachment was made.
2. There is no doubt that that was a stronger case than the present. Here the 5th respondent was found under the circumstances to have been duly served with notice by affixture, but in the Privy Council case the judgment debtor actually applied for and obtained three months' stay of sale. In Raja of Ramnad v. Veluswami Thevar 13 L.W. 190 (P.C.) , also a Privy Council case, it was laid down that it is incumbent on a judgment debtor to bring forward a plea of limitation before the executing court if he intends to rely on it. In this case the question of limitation was raised and decided, not as in Manjunath Badrabhat v. Venkatesh Govind Shanbhog I.L.R(1881) . 6 Bom. 54, where the objection was not taken and the whole proceeding was exparte. In Beni Prasad Kunwar v. Mukhtesar Rai I.L.R.(1890) All. 316, (also quoted for respondent) it was contended that plaintiffs when brought in 1881 as representative of the judgment debtors liable under a decree of 1877 should have at once raised the objection that they were not then brought on, but such objection was too late. It was held that this did not apply to a case where there could be no representative, because there was no party to be represented (he having died meanwhile) and therefore no question as to who was the representative. Mr. Ramachandra Iyer's strongest argument however was based on Jungli Lal v. Laddu Ram Marwari (1919) 4 Pat. L.J. 240, which held that 'neither the executing court nor any other tribunal is bound to take notice of a nullity though it may take the form of a decree'. * * * 'In any case if the decree is void it can and ought to be disregarded without any formal proceeding to set it aside and the court had no jurisdiction to execute it against the property of a deceased defendant.' The decision apparently dissents from Kalipada Sarkar v. Hari Mohan Dalal I.L.R(1916) . Cal. 627 .
3. Mr. Anantakrishna Iyer's answer to the arguments based on the cases above quoted is that a decree against a dead man is a nullity and is void; and that the validity of a decree cannot be discussed in execution. He quotes Zamindar of Ettiyapuram v. Chidambaram Chetti 39 M.L.J. 75 where it was held that the words 'or of the jurisdiction of the court which passed it' which occurred in Section 225 of the old Civil Procedure Code and which are omitted in the present Code were so omitted because it was felt that it was not for the executing court to go into questions of the jurisdiction of the court to pass the decrees. Kalipada Sarkar v. Hari Mohan Dalal I.L.R(1916) . Cal. 627 is quoted in the judgment of Wallis, C.J. (in which Ayling and Coutts-Trotter, JJ. concurred), as authority for the proposition that a court executing the decree cannot go behind it. It would thus seem that there is a conflict between this decision and that in fungi Lal v. Laddu Ram Marwari (1919) 4 Pat. L.J. 240 . We are bound by the former. I am further unable to see any real distinction in Mr. Ramachandra Iyer's contention that Zamindar of Chidambaram v. Chidambaram Chetti 39 M.L.J. 75 dealt only with the pecuniary (I think he meant territorial) jurisdiction. If the executing court is unable to go behind the decree it is called upon to execute, the particular mode in which the decree is invalid or in-effective cannot make any difference.
4. In support of his contention Mr. Ramachandra Iyer further quoted in reply Rangaswami Naicken v. Thirupati Naicken I.L.R.(1904) Mad. 26 and Lakshmanswami Naidu v. Rangamma I.L.R(1902) Mad. 31 In the former there is a single sentence at page 21 which is clearly obiter and is not necessary for the decision, to the effect that in the case of a decree passed without jurisdiction, a party to the proceeding may impeach it as a nullity even though not set aside on appeal or otherwise. In Lakshmanaswami Nadan v. Rangamma 39 M.L.J. 75 it was held that the sale of the office in question being opposed to public policy in so far as the decree embodied unlawful terms of a compromise, it is inoperative and will not be enforced. There the court had adopted the terms of the compromise and part of its terms were unlawful; therefore the court had no jurisdiction to pass such a decree under Section 375 of the former Code of Civil Procedure. No authority is quoted for the proposition that the lawful character of the decree can be questioned in execution proceedings and apparently the learned Judges felt no doubt on the matter. They cancelled the sale of the office which had been ordered in execution. The case seems clearly opposed to the Full Bench ruling in Zamindar of Ettiyapuram v. Chidambaram Chetti I.L.R.(1902) M. 31 which in my opinion would govern it. If I am right the decision in Lakshmanaswami Naidu v. Rangamma 39 M.L.J. 75 must be regarded as overruled.
5. It seems therefore clear that as far as this Court is concerned the executing court cannot go behind the decree. The cases, Radha Prasad Singh v. Lal Sahib Rai I.L.R(1890) . All. 53 , and Beni Prasad Kunwar v. Mukhtesar Rai I.L.R.(1899) All. 316 were also relied on. In the former it was held that in a suit in which mesne profits were decreed in 1856 the amount of the same was not settled till 1877. Execution was taken against the plaintiffs on the ground that they were heirs of the original judgment debtors. Held by the Privy Council they were not liable under the decree as the alleged ancestor died before the issue of an executable decree as they were riot made parties to the suit in which the decree was pronounced, just as in this case no final decree for sale was obtained till after 4th defendant's death. It is contended for the appellants that the only effect of the decision is that a person not a party and whose representatives are not parties cannot be bound by the decree.
6. In my opinion, however, the decision goes further as the ground of the decision is expressly based on the death of the alleged ancestor before the issue of the money decree for mesne profits, I.L.R. 21 All. 316 has already been dealt with and would appear to be against the appellants. Finally in Raghunathaswami Iyengar v. Gopaul Rao 41 M.L.J. 547, Ramesam, J said; 'But there is no substance in the distinction that where the decree, was duly obtained against the deceased judgment debtor the sale in execution after a decree without the heir of the judgment debtor properly on the record is not a nullity.'
7. The result of the authorities by which we are bound seems to be clearly against the appellants and I must hold that the District Judge was right in this decision that the decree against the deceased was a nullity and that that was not a matter which could have been gone into in execution. The present plaintiff was perfectly within his rights in bringing this suit from which this is a second appeal. See I.L. Rule 21 All 316 already quoted. The decision of the learned District Judge is right arid the second appeal must be dismissed with costs.