KAHARJANNESSA Vs. SARADINDU NARAYAN ROY

JUDGEMENT

(1.) Upon the findings arrived at by the Courts below the facts of this case, which cannot be disputed, seem to be the following that the decree-holders obtained a decree far rent in respect of a certain tenancy against a number of defendants amongst whom was one namely, defendant 2. This defendant was dead, but the fact that he was dead was not brought to the notice of the Court, and on the other hand a false return was lodged through a peon alleging that there was proper service of summons on him. In such circumstances the decree was obtained on 26 November 1930. On 20 April 1932 the decree-holders put the decree into execution under the provisions of Ch. 14, Ben. Ten. Act, as a rent decree. They applied for substitution of the heirs of the said judgment-debtor 2 on 4 June 1932 and obtained from the Court an order substituting the appellants as his heirs and legal representatives. After the order was passed notice was issued on the appellants under Order 21, Rule 22, Civil P.C. The appellant appeared after service of the said notice and eventually on 8 November 1932 filed an objection under Section 47 of the Code alleging that the decree had been passed against a dead man and therefore was a nullity so far as that person or his legal representatives were concerned.

(2.) The Court of first instance upheld the objection and ordered that the decree could only be executed as a money decree and against the other judgment-debtors and not against the present appellants. The Subordinate Judge on appeal has reversed the trial Court's decision and has held that the execution proceeding can go on under the provisions of Ch. 14, Ben. Ten. Act, because the executing Court is not competent to go behind the decree unless it appears on the face of the decree that there is something which makes it invalid. The learned Subordinate Judge has referred to the Full Bench decision of this Court in Gora Chand Haldar V/s. Prafulla Kumar Roy 1925 Cal 907 and has taken the view that decision has been modified by the decision in Amalabala Dasi V/s. Sarat Kumari Dasi 1932 Cal 380 to this extent: that in all cases the Court will have to confine itself to the papers that are on the record and that it can in no case hold any investigation for the purpose of ascertaining whether there was jurisdiction in the Court to pass the decree. The observations contained in the last mentioned decision, in our opinion, must be taken along with the facts of that case which, it may be pointed out, was a case in which the territorial jurisdiction of the Court passing the decree was questioned.

(3.) We are of opinion that the decree having been passed not against the appellants but against a person whose heirs and legal representatives they are the appellants were perfectly entitled, when they were sought to be brought on the record, to point out to the executing Court that the decree as it stood was not executable as against them. The proposition that a decree passed against a dead person amounts to anullity is too well-settled to admit of any doubt in present day. The executing Court, in our judgment, was fully competent to inquire into the question which arose in the present case. The fact that the judgment-debtor 2 was dead before the decree was passed and the decree was obtained by concealing from the Court the fact that he was dead and getting a false return submitted by the peon cannot be challenged in this second appeal before us. We are of opinion therefore that this appeal ought to succeed. We accordingly set aside the order of the learned Subordinate Judge and restore that of the Court of first instance. The appellants are entitled to their costs in his Court and in the Court of appeal below, the hearing fee of this appeal being assessed at two gold mohurs.