1. This is a second appeal against the order of the District Judge of East Tanjore allowing the appeal against the order of the District Munsif of Shyali. The decree-holder respondent obtained a decree against the father of the appellant and the appellant. He impleaded the appellant as a major. In execution the 3rd defendant obstructed and a petition was put in by the decree-holder to have his obstruction removed and possession of the property delivered. The appellant then appeared by his mother as guardian and pleaded that he was a minor. The lower Court having so found, dismissed the petition. The lower Appellate Court allowed the appeal on the grounds that this matter could not be raised by the appellant in execution and that his proper remedy was by way of suit. The point for decision is which of these two views is correct.
2. The appellant has argued that under Order XXI, Rule 99, the petition was correctly dismissed because he being a minor, was in the same position as a person ''other than the judgment-debtor', and according to the ruling of the Privy Council in Rashid-un-nissa v. Mohamad Isntail Khan 31 A 572 : 3 Ind. Cas. 861 : 13 CWN 1182 : 10 CLJ 318 : 6 ALJ 822 : 11 Bom. LR 1225 : 6 MLT 279 : 19 MLJ 631 : 36 IA 168 the appellant not having been properly represented, was not a party at all. That argument, however, seems to beg the question in this case, which is, at what stage should the question of minority be gone into. And it is to be observed that in the above-mentioned case, the question was raised in connection with Section 244. Section 47. Civil Procedure Code, and it was held that a suit to set aside execution proceedings by a minor on the ground of non-representation was not barred by the above section. There are conflicting authorities on the subject. In Sami Chettiar v. Sesha Iyer : AIR1928Mad1057 , Devadoss, J., took the view that the question of a defendant being a minor could be taken at any time, even in execution. And in Venkata Someswara Rao v. Pulavarty Lakshmanaswami 52 M 275 : 115 Ind. Cas. 801 : 29 LW 125 : AIR 1929 Mad. 213 : 56 MLJ 175 (Kumarasawmi Sastri and Devadoss, JJ.,) Kumarasami Sastri, J. one of the referring Judges, stated that, at least on the balance of convenience, it wes better that the question whether a decree was void by reason of the defendant being a minor should be gone into in execution and not by means of a suit. Devadoss, J. at page 284 Page of 52 M.--[Ed.] says:
The second question is, can the Executing Court entertain an objection to the execution of the decree against a minor on the ground ,that the guardian ad litem had an interest adverse to that of the minor in the suit? If the decree is not illegal on the face of it, is it open to the Executing Court to go behind it?
3. He then goes on to say that it open is to the minors to have these matters investigated in a suit. Kumarasawmi Sastri, J., seems to draw a distinction between a void and a voidable decree. In the former, he considers that the matter can be investigated in execution and so does Devadoss, J. The Full Bench set at rest none of these questions. It is necessary to say a few words with regard to Kumarasawmi Sastri, J.'s suggestion that the balance of convenience is in favour of investigating the question of minority, in execution. That may be so, and that comment might frequently be made with regard to the preferability of investigations in exe cution to those in a suit. But, with great respect, it does not seem to me to satisfy the test laid down by Section 47. The point that is raised in such cases seems to be not one 'relating to the execution, discharge or satisfaction of the decree,' but amounts to a plea that the decree is void and that it was wrongly passed by the trial Court. An examination of the cases mentioned shows that they are not direct decisions on this point, the observations in favour of the appellant in these cases being obiter. But the matter has been directly dealt with in two recent decisions of this High Court. In Govindan Nadar v. Natesa Pillai 61 MLJ 520 : 135 Ind. Cas. 314 : 34 LW 806 : AIR 1932 Mad 7 : Ind. Rul. (1932) Mad. 74, Jackson, J, had to deal with this very question. In that case, it was raised in execution that the defendant was a lunatic, unrepresented. Jackson, J., following the decisions of the Calcutta High Court in Kalipada Sarkar v. Hari Mohan Dalal 44 C 627 : 35 Ind. Cas. 856 : 24 CLJ 375 : 21 CWN 1104 and Gora Chand Haldar v. Prafulla Kumar Rai : AIR1925Cal907 took the view that it was not open to the Executing Court to go into that matter. The rule to be derived from Gora Chand Haldar v. Prafulla Kumar Rai : AIR1925Cal907 seems to be that the voidness of the decree must be apparent on the face of it. Jackson, J., observes that the rule laid down by the Calcutta High Court conforms with the universally recognised principle, and he accepted those decisions. In Lakshmanan Chettiar v. Chidambaram Chettiar : AIR1935Mad236 a Full Bench of this High Court (Curgenven and Cornish, JJ.), has expressed approval of the above decision of Jackson, J., and prefers his view to that of Oldfiled, J., in Subramania Aiyar v. Vaithinath Aiyar 38 M 682 : 31 Ind. Cas. 198 and Madhavan, Nair, J., in Arunachalam Chetty v. Abdul Subhan Sahib 50 MLJ 232 : 93 Ind. Cas. 356 : (1926) MWN 129 : 23 LW 311 : AIR 1926 Mad. 429. It may be mentioned that the High Court of Rangoon in S.A. Nathan v. S.R. Samson 9 R 480 : 135 Ind. Cas. 65 : AIR 1931 Rang. 252 : Ind. Rul. (1931) Rang. 17 has dissented from the Full Bench decision of the Calcutta High Court in Gora, Chand Haldar v. Profulla Kumar Rai : AIR1925Cal907 I prefer the Calcutta view expressed in Kalipada Sarkar v. Hari Mohan Dalal 44 C 627 : 35 Ind. Cas. 856 : 24 CLJ 375 : 21 CWN 1104 and Gora Chand Haldar v. Prafulla Kumar Rai : AIR1925Cal907 . I do not consider that Section 47, Civil Procedure Code, is intended to be used for the purpose of investigating matters relating to the validity of the decree itself when on the face of it there is nothing illegal about the decree. Cases in which pleas of minority might be deliberately withheld for the purpose of obstructing future execution proceedings can be easily imagined and I am not in pressed by the argument as to hardship. As to the question of hardship, in suitable cases, the Court in which the suit is filed to set aside the decree can always, be interlocutory orders, make provision against the minor's property being unjustly sold.
4. As to the point raised that the order of the District Munsif was not appealable, it is quite clear that he purported to make it under Section 47 and there is no substance in this contention as a result of these conclusions, I would dismiss this appeal with costs.
5. I agree.
6. There is no definite current of decisions in any High Court to the effect that an Executing Court whose business it is to execute, should institute an enquiry at the instance of any person to ascertain whether a decree, to all appearances a perfectly valid one, may not for some reason or other be invalid. It is against the well-established principles governing the duties of an Executing Court that it should sit in judgment over a Court that has passed a decree, which may even be a superior Court. Cases, however, arise where the Executing Court is forced to notice that a decree is not executable, and in such cases it should not execute. The unexecutability of the decree may be obvious from a perusal of the judgment and the pleadings, or it may appear when a decree-holder is seeking to make a legal representative of a judgment-debtor liable, that the legal representative is not liable because no decree was passed against the judgment-debtor while he was yet alive. Executing Courts must recognise these facts. I do however, feel that it would be against the trend of decisions, above all the decisions, since the closely-reasoned judgments in Kalipada Sarkar v. Hari Mohan Dalal 44 C 627 : 35 Ind. Cas. 856 : 24 CLJ 375 : 21 CWN 1104 to countenance an enquiry in execution whether a judgment-debtor was a minor. Although the principal case relied on by the appellant S.A. Nathan v. S.R. Samson 9 R 480 : 135 Ind. Cas. 65 : AIR 1931 Rang. 252 : Ind. Rul. (1931) Rang. 17 disagrees with Gora Chand Haldar v. Prafulla Kumar Roi : AIR1925Cal907 regarding the distinction between a decree that is void on the face of it and one that is found to be void after enquiry, yet the effect of the judgment in S.A. Nathan v. S.R. Samson 9 R 480 : 135 Ind. Cas. 65 : AIR 1931 Rang. 252 : Ind. Rul. (1931) Rang. 17
7. It is argued that if the District Munsif had no authority under Section 47 to go into this matter, his order was not one under Section 47 and so is not appeable. The fallacy of this argument is that although the District Munsif ought not to have made this enquiry, he assumed jurisdiction and purported to pass an order under Section 47, Civil Procedure Code. His order, wrongly given though it was, was, therefore, under Section 47, Civil Procedure Code, and appealable.
8. The respondent has put forward an alternative answer to the appellant. It is that as two brothers of the appellant, with identical rights and liabilities, were parties to the decree, they sufficiently represented the minor appellant. This is a reasonable contention but it is weakened if not vitiated by the fact that the plaintiff did not treat them as representatives of the appellant's interest because he impleaded him, as well as his brothers. In view of the fact that the appeal fails otherwise, we have not thought it necessary to decide this rather nice point.