B.K. Mukherjea, J.
1. This appeal is on behalf of the decree-holder and is directed against an order passed in appeal by the Subordinate Judge, Second Court, 24-Parganas reversing that of the Munsiff, first Court of that place passed in a proceeding in execution of a decree. The facts lie within a short compass and are for the most part undisputed. The appellant got a decree against the respondent as heir of his deceased father Nabin Chandra Pramanik for a sum of Rs. 497 odd in the Court of Small Causes at Calcutta on 16th March 1934. The amount decreed represented the arrears of rent due in respect of certain homestead land situate in the suburbs of Calcutta, which the deceased Nabin held as a tenant under the plaintiff. The decree was passed by consent and the decretal amount was payable in instalments of Rs. 15 a month and it was further directed that the decretal dues were to be realized out of the assets of Nabin in the hands of the defendant. In 1936 the decree was transferred for execution to the Alipore Court and the judgment-debtor took certain objections under Section 47, Civil P.C. contending inter alia that the decree was a nullity and was incapable of being executed.
2. The ground put forward in substance was that Nabin, against whom the suit was originally instituted, was dead long before the date of the filing of the suit. As the suit was against a dead person, the decree passed in it was a nullity and the Court had no jurisdiction to bring the present defendant as heir or legal representative of his father as the latter died not after but before the institution of the suit. This contention was negatived by the trial Court but was allowed in appeal by the learned Subordinate Judge and against this decision the present second appeal has been preferred. It is now a settled doctrine so far as this Court is concerned, that the executing Court is competent to go behind the decree and refuse to execute it if the Court, which passed the decree, had apparently no jurisdiction either territorial or pecuniary or in respect of the person of the judgment, debtor : Gora Chand Haldar v. Prafulla Kumar Boy : AIR1925Cal907 . There is nothing suggested here as to the absence of territorial or pecuniary jurisdiction of the Small Cause Court, Calcutta which tried the suit and the sole point raised here is, as to whether or not it could decide the claim or pass any decree when the original defendant in the suit was a dead person.
3. It cannot be disputed that there is no provision in the Civil Procedure Code authorizing the institution of a suit against a dead person and a decree passed against a person who was not living at the date is certainly a nullity. If such a decree is sought to be executed against the legal representatives of the alleged judgment-debtor, it would be open to them to contend that the decree was void ab initio and could not in law be executed against them: Narendra Bahadur Chand v. Gopal Sah (1913) 17 CLJ 634. In the present case, however, the decree was not against any dead person. The suit that was started against Nabin was given up. Subhas, the present defendant, was made a party defendant and the plaint was amended so as to make it a suit against him alone seeking to make Subhas liable to the extent of the assets that he had inherited from his deceased father. The records do not show that Subhas was substituted as an heir of Nabin on the footing that Nabin died after the institution of the suit. It may be that it was not proper on the part of the Court to allow this suit that was instituted against Nabin to be converted into one against the present defendant when the question of limitation would have been a material point for consideration. But these are questions which could and should have been raised by the present defendant when he was made a party to the suit. Not only did he not raise any such question but a copy of a decree shows clearly that he was present all through the proceedings and the suit actually culminated in a consent decree, the decretal amount being made payable by consent of both parties in instalments of Rs. 15 every month. Under these circumstances I am of opinion that it is not a case where the Court can be said to have lacked jurisdiction in respect of the person of the judgment- debtor and consequently it is not a case which comes within the purview of the decision of the Full Bench case set out above.
4. The result is that the appeal is allowed, the decision of the lower Appellate Court is set aside and that of the trial Court is restored with costs in all three Courts. Hearing fee of this Court is assessed at one gold mohur. Leave to appeal under the Letters Patent is prayed for and is refused.