HALEKOTE KUNHI KALANDA BEARI Vs. KUNHIPAKKI ALIAS SULEMAN, MINOR BY NEXT FRIEND, KARNAVAN KOOLERI VALIYA PEEDIGAYIL ABDUL KHADER HAJI

JUDGEMENT

(1.) The question we have to decide arises in execution of a decree passed in a suit brought to enforce a mortgage. The first three defendants in that suit were father, mother and son respectively. The 4 defendant is the wife of the 3rd. The 2nd defendant, the mother, died before the passing of the preliminary decree. The 5 and the 6 defendants, her daughters, were added as her legal representatives, the 3 defendant, her son, another heir, being already on the record. I may mention, though it is not necessary for the purpose of this case, that the 5 defendant died and her children were brought in her place on the record. It was after these changes in regard to parties that the preliminary decree came to be passed. Subsequent to the passing of that decree, the 3 defendant died. His legal representatives were his father, the 1 defendant, his widow, the 4 defendant and his infant son, who now intervenes in execution and impeaches certain proceedings as being void. On the death of the 3 defendant no application was made to bring his legal representatives on the record. They were three in number as I have just shown. Two of them who were adults were already on the record. The third, whose name was omitted to be added was an infant. What happened, however, was, that without the 3 defendant's legal representatives being formally brought on the record, the final decree in the case was passed. In execution of this decree, a certain sale was held. The 3 defendant's infant son, to whom I have already referred, now applies that the sale may be set aside on the ground that it is null and void.

(2.) The first question that arises is, what is the effect of the omission to bring formally the representatives of the 3 defendant on the record? What the result would have been if such omission had occurred, before the passing of the preliminary decree, it is unnecessary to enquire, although I very much doubt, when the representatives happen already to be on the record, whether Order 22, Rule 4 applies and the suit abates, as against the deceased party, on the ground that they were not formally added as such representatives. Here, it was after the passing of the preliminary decree, that the 3 defendant died; to such a case, it has been held that the provisions relating to abatement do not apply. The principle is thus stated in the judgment of the Full Bench in Perumal Pillay V/s. Perumal Chetty (1928) l.L.R. 51 Mad. 701: 55 M.LJ. 253: The right of action ... is determined by a preliminary decree because the final deeree is only by way of working out in detail the principles laid down and determined in the preliminary decree-

(3.) The case is then analogous to a party being absent on the record at the stage of execution. A good deal of argument was directed at the Bar to the point, what are the powers of an Executing Court to call the decree in question, first, when it is wholly null and void, and, secondly, when it is merely voidable? Mr. Sitarama Rao contends that in neither case can the Executing Court decide questions relating to the executa-bility of the decree. He next urges, that although he may concede without admitting, that the Executing Court may refuse to give effect to wholly void decrees, in the case of other decrees, its duty is merely to execute them as they stand. The decree before us is clearly not a nullity; and in the present case it is unnecessary to express any opinion on the vexed question regarding the powers of an Executing Court.