Law: Civil Procedure Code (V of 1908)

Section: S. 47

  Civil Procedure Code (V of 1908), S. 47-Executing Court --Whether competent to question the decree passed against dead person.   Shivaji Sayaji Gaohar v. Vithal Narayan Mirashi and others A I R 1927 Bom. 53 and Benoyendra Nath Roy Chaudhury and others v. Jadav Chandra Roy Chaudhury 8 D L R 147 ref.   Decree-Against dead person-Nullity.   Res judicata-Proceeding comprising administrative and judicial orders-Judicial order may not be allowed to be re -agitated Civil Procedure Code (V of 1908), S. 11.   Commissions-Appointment of pleader as Commissioner to give delivery of possession-Administrative order-Civil Procedure Code (V of 1908), O. XXI V, r. 13-Court may go back on such an order-No res judicata. JUDGMENT   HASAN, J.-This appeal is at the instance of the decree-holder and is directed against the order passed by the lower appellate Court allowing an application under section 47 of the Code of Civil Procedure.   The decree-holder instituted Partition Suit No. 36 of 1945 on the 15th of June 1945. On the 8th of July, 1947, one of the defendants, namely, defendant No. 16 (Yakub Ali Khan) died. Thereafter, on the 26th of April, 1948, a preliminary decree was passed against the defendants including the deceased defendant No. 16. No steps were taken by the plaintiff' to bring the heirs and legal representatives of the said defendant No. 16 on record. The final decree was passed on the 7th of February, 1953, and notices under Order XXI, rule 22 of the Civil Procedure Code were served on the heirs of defendant No. 16 on the 25th of February, 1956. It appears that though notices under Order XXI; rule 22 of the Code were served on the judgment -debtors, none appeared on or before the 26th of April 1956, on which date the Court appointed a Commissioner to make delivery of a saham to the decree-holder. On the 1st of May, 1956, the heirs of the deceased defendant No. 16 filed an applica tion under section 47 of the Code of Civil Procedure pleading that the decree that was passed against defendant No. 16 was a nullity as the same was passed against a dead person. An objection was filed against that application by the decree-holder.…