RAM SARUP Vs. NARAIN DAS

JUDGEMENT

(1.) This is a decree-holders appeal in an execution matter. Technical questions of law have been raised on both sides, for the determination of which it is necessary to examine carefully and in detail the proceedings of the court below from the date of the institution of the [suit to the passing of the order under appeal. The suit was one on a mortgage. It was instituted on the 12 of December, 1916, and there were a large number of defendants. The case came before the trial court on the 2nd of March, 1917, when it was found that only one defendant, named Nanhu, bad entered an appearance. Service on all the other defendants was found to have been sufficient and an order was passed that the hearing of the suit would continue ex parte as against all these other defendants. Nanhu applied for time, and, it appears, that the hearing of the suit was considerably delayed on this man's application. We are told that the reason for this was that Nanhu was absent on field service, but we are not really concerned with the reason for the delay. It is sufficient for us to note that a preliminary decree for sale under the provisions of Order XXXIV, Rule 4, of the Civil P. C. was finally passed on the 8th of April, 1920, the date fixed for payment being the 8 of October of the same year. On the 8 of November, 1920, the decree-holders presented an. application asking the court to prepare a decree absolute for sale under Order XXXIV, Rule 5, of the Civil P. C.. They recited the necessary fact, that no payment had been made under the preliminary decree. They went on to assert that three judgment-debtors named in the application, had died in the interval since the passing of the preliminary decree of the 8 of April, 1920. The names of two of these persons and the proceedings taken in respect of them are no concern of ours at present. The third judgment-debtor, alleged to have died in the interval between the 8 of April and the 8 of November, 1920, was one Zahiri Mal. In respect of this man it was stated in the decree-holders application that his legal representative was Narain Das, already impleaded on the record as a defendant in his personal capacity. There ought to have been a formal prayer that the legal representatives of the other two deceased judgment-debtors or defendants should be brought on to the record and that an entry be made on the record that Narain Daa is now impleaded as the legal representative of the estate of Zahiri Mal, as well as in his personal capacity. As a matter of fact the only prayer in the application was that the names of the deceased defendants be removed from the record and a final decree passed against other defendants. This application of the 8 of November, 1920, was supported by affidavit, but the court did not cause notice of the application to issue, either to Narain Das or to the persons named as the legal representatives of the other deceased defendants. Apparently the court acted upon an incorrect and misleading office report, in which it was stated that the legal representatives of the deceased defendants named in the affidavit "are already on the record." On the strength of this report the court caused to be passed, on that very same date, namely the 8 of November, 1920, a. decree absolute for sale. In this decree Narain Das appears as a judgment-debtor both in his personal capacity and as representing the estate of the deceased defendant, Zahiri Mal.

(2.) On the 17 of January, 1921, the decree-holders applied for execution of this final decree, and, on the 18 of February, 1921, Narain Das filed an objection in which he alleged that Zahiri Mal had died prior to the passing of the preliminary decree of the 8 of April, 1920, and contended that the decree, as it stands, is incapable of execution. His prayer was that the application for execution made by the decree-holders may be struck off. In this application to the court Narain Das does not say that he himself is not, in fact, a proper person to be brought on to the record as the legal representative of the estate of Zahiri Mal, or suggest any other person or persons as the proper legal representatives of the said defendant's estate. Further, on that same date, namely the 18 of February, 1921, Narain Das presented another application to the court. This was that the ex parte decree of the 8 of April, 1920, that is to say, the preliminary decree for-sale, should be set aside under Order IX, Rule 13, of the Civil P. C.. It is not clear why he did not apply to have the final decree of the 8 of November, 1920, which was also ex parte as against him, set aside; but the application on the record relates only to the preliminary decree. In this application it was definitely alleged that Zahiri Mal had died on the 28 of May, 1919. The court disposed of the application by an. order of the 27 of June, 1921, It is not necessary for ns to criticize that order, but there can be no doubt as to its meaning and effect. The court noted that in the month of February, 1917, Zahiri Mal had been personally served with notice of the suit. It took up the position that Zahiri Mal having admittedly died on some subsequent date, the burden of proving the date of his death was on the party which asserted that death to have occurred prior to the 8 of April, 1920. It went on to note that Narain Das had laid no evidence before it to prove the allegation that Zahiri Mal had died on the 28 of May, 1919, or was dead when the preliminary decree was passed on the 8 of April, 1920. On this ground it dismissed the application of Narain Das to have the ex parte decree set aside. This order is dated the 27 of June, 1921.

(3.) About a month later, the court proceeded to dispose of the objection of Narain Das to the execution of the final decree of the 8 of November, 1920. In this proceeding it appears to have taken evidence as to the date of Zahiri Mal's death and records the finding that this defendant had, in fact, died on the 28 of May, 1919. Referring then to the principles laid down in two reported decisions, the court holds, not that the preliminary decree of the 8 of April, 1920, which it had already refused to set aside, is, in any way, defective or inoperative, but that the absolute decree of the 8 of November, 1920, is a nullity and cannot be put into execution. The formal order passed on this finding is that the objection be allowed with costs. Against this order the decree-holders have appealed and they have complicated matters further by electing to implead Narain Das alone.