Thadani C. J. - I have had the advantage of reading the judgment of my learned brother. I regret to say that I am unable to agree in the conclusion he has arrived at. [2] The question for consideration is-whether an adjudication made in pursuance of O. 20, R. 16, Civil P. C., at a time when the defendant was dead, a preliminary decree for accounts having been passed against him when he was alive, is a nullity. I have deliberately used the word 'adjudication,' and cot the words 'a final decree,1 for reasons which will appear from the judgment. [3] Before proceeding to a consideration of the reports of decided cases which were cited at the bar, I will endeavour to arrive at an accurate analysis of sub-s. (2) of S. 2, Civil P. C., includ­ing the explanation to it. Sub section (2) of S. S and the explanation thereto are in these terms: "(2) "decree" means the formal expression of an ad­judication which, so far as regards the Court expressing it, conclusively determines the rights of the parties with regard to all or any of the matters in controversy in the suit and may be either preliminary or final. IE shall be deemed to include the rejection of a plaint and the deter­mination of any question within S. 47 or 8 144, but shall not include:-(a) any adjudication from which an appeal lies as an appeal from an order, or (b) any order of dis­missal for default. Explanation: A decree is preliminary when further proceedings have to be taken before the suit can be com­pletely disposed of. It is final when such adjudication completely disposes of the suit. It may be partly pre­liminary and partly Seal." [4] It is manifest that a decree, to be a decree within the meaning of sub s. (2) of S. 2, Civil P. C., must conclusively determine the rights of the parties with regard to all or any of the matters in controversy in the suit. A decree, be it preliminary or final, must conform to the requirement that the adjudication conclusively determines the rights of the parties. A decree which conclusively deter­mines the rights of the parties but requires further proceedings to be taken before the suit can be completely disposed of, is designated as preliminary, and final, when the adjudication upon such further proceedings completely dis­poses of the suit. A decree which conclusively deter­mines the rights of the parties but requires further proceedings to be taken before the suit can be completely disposed of, is designated as preliminary, and final, when the adjudication upon such further proceedings completely dis­poses of the suit. The adjudication itself for the-purpose of completely disposing of the suit, is not a decree, for, the Court has already conclusively determined the rights of the parties upon a decree in which further proceedings have to be taken for the limited purpose of completely disposing of the suit. [5] The expression "it may be partly preliminary and partly final" does not mean that there can be two decrees in a suit conclusively determining the rights of the parties. It means that a decree passed by a Court which conclu­sively determines the rights of the parties, may yet require further proceedings to be taken upon the adjudication of which the suit can be com­pletely disposed of. Such a decree is regarded as partly preliminary and partly final. The simplest example of a decree which is partly preliminary and partly final, is a decree for possession and mesne profits-a decree in which their Lordships of the Privy Council in a case reported in Badha Prasad Singh v. Lal Sahab Rai, 17 Ind. App. 150 (P. C) had occasion to consider the effect of an adjudication determining mesne profits at a time when the defendant was dead after the decree for possession and mesne profits had been made when the defendant was alive. [6] It is true that before 1924, some High Courts in India had taken the view that where a defen­dant dies after the preliminary and before the final decree, the suit abates so far as it concerns the deceased defendant, if his legal representatives are not brought on the record within the prescrib­ed time. But as the learned commentator, 8ir D. F. Mulla, points out it is difficult to reconcile such cases with the decision of the Privy Council in "Lachmi Narain v. Balmukund" 51 Ind. App. 321. After the decision of the Privy Council the Allahabad, Lahore and Bombay High Courts and the Chief Court of Oudh have held that 0. 22 does not apply where a defendant dies after the passing of a preliminary decree: vide Mt Lakhpati Kuer v. Daulat Singh, 2 Luck. 464; Mahabir Singh v. Narain Tewari, 54 ALL. App. 321. After the decision of the Privy Council the Allahabad, Lahore and Bombay High Courts and the Chief Court of Oudh have held that 0. 22 does not apply where a defendant dies after the passing of a preliminary decree: vide Mt Lakhpati Kuer v. Daulat Singh, 2 Luck. 464; Mahabir Singh v. Narain Tewari, 54 ALL. 25 (F. B ); Dawarali Jafarali v. Bai Jadi, 42 Bom. L. R. 663. Indeed, the Allahabad High Court amended B. 12 so as to supersede a decision to the contrary reported in Anmol Singh v. Eari Shanker Lal, 62 ALL. 910. The learned commentator points out the ratio decidendi is that after a preliminary decree is passed, it cannot be said that the right to sue still exists and it is inappropriate to refer to the right to sue as either surviving or not surviving. [7] In the light of the analysis of sub-s. (2) of 8. 2, Civil P. C. and the cases in which it has been held that there is no question of abatement of a suit after a preliminary decree has been passed against a defendant when he was alive, the cases reported in Nanjayya Mudali v. Shan-mugamudali, 38 Mad. 684; Imdad Ali v. Jagan Lai, 17 ALL. 478; Bhanji Singh v. Bhagwati Prasad, A. I. R. (7) 1920 Nag. 6t; Ghasiram v. Shika Prasad Singh, A. I. R. (24) 1937 Pat. 321; Sripat Narain Bai v. Tribeni Misra, 40 ALL. 433; Anwarul Hag v. Nazar Albas, A. I. B (12) 1925 Lah. 494; Ambika Prosad v. Jinak Singh, 45 ALL, 286; P. Bas&winjanayulu v L. Bamalingayy, A.I.R. (25) 1938 Mad. 115; Mahani Chinera T. Bamjan Ali, A. I. R. (27) 1940 Pat. 243 and Gulab Bano v. Anjuman Imdad Btihmi Qarza, A. I. R. (24) 1937 Lah. 63 are of no assistance in deciding the question before us. In all these cases, a decree conclusively determining the rights of the parties was for the first time made when the de­fendant was dead. Manifestly, the decree in such Cases was nullity within the meaning of the prin­ciple enunciated by their Lordships of the Privy Council in the case reported in Janendra Mohan v. Babindra Nath, A. I. R. (20) 1933 p. c. 61, namely, that when a decree is passed in the absence of inherent jurisdiction, it is a nullity. Manifestly, the decree in such Cases was nullity within the meaning of the prin­ciple enunciated by their Lordships of the Privy Council in the case reported in Janendra Mohan v. Babindra Nath, A. I. R. (20) 1933 p. c. 61, namely, that when a decree is passed in the absence of inherent jurisdiction, it is a nullity. [8] It may be conceded that no Court has in­herent jurisdiction to pass a decree. Jurisdiction to pass a decree is given to a Court by the Civil Procedure Code, and when an abatement of a suit or appeal occurs in accordance with 0. 22, Civil P. C., a Court has no inherent jurisdiction to proceed with the matter and pass a decree. When, however, a decree which is to be regarded as a preliminary decree within the meaning of the Explanation to sub-s. (2) of s. 2, Civil P. C., is passed at a time when the defendant was alive, I do not think further proceedings upon such a decree which has conclusively determined the rights of the parties and an adjudication made thereon in order that the suit might be complete­ly disposed of at a time when the defendant was dead, can be regarded as having been made with-out jurisdiction, for the plain reason that a de­cree conclusively determining the rights of the parties has already been passed with jurisdiction. [9] In a ease which falls within the purview of o. 20, B. 16, Civil P C., as the present case undoubtedly does, such proceedings and an adjudication thereon are clearly contemplated by the Civil Procedure Code. A Court in 3uoh a case acts with jurisdiction given to it by 0. 20, R. 16, Civil P. C. It is true that proceedings held under 0 20, R 16, Civil P.O., are not proceedings in execution, but proceedings in the suit, but nevertheless the provisions of 0. 22, Civil P. C., have not been made applicable to them; the question, therefore, of abatement of proceedings under 0. 20, R. 16, Civil P. C., does not arise. [10] An adjudication under the provisions of 0. 22, Civil P. C., have not been made applicable to them; the question, therefore, of abatement of proceedings under 0. 20, R. 16, Civil P. C., does not arise. [10] An adjudication under the provisions of 0. 20, B. 16, Civil P. C., is not to be confused with a decree as defined in sub s. (2) of 8, 2, Civil P. C. it may be conceded that when a Court exercising jurisdiction given to it under O.20, K.16, Civil P.C , makes an adjudication at a time when the defendant was dead, it acts illegally or with material irregularity in the exercise of its jurisdic­tion, but illegal or irregular exercise of jurisdiction in the matter of an adjudication in pursuance of the provisions of 0. 20, B. 16, Civil P.O., cannot be regarded as absence of inherent jurisdiction, which alone, in my opinion, constitutes the reason for regarding an act of the Court as a nullity. An, adjudication in which a Court has acted in the exercise of its jurisdiction illegally or with material irregularity, is not a nullity, but only avoid­able adjudication. [11] I am unable to see how the case reported in Radha Prasad Singh v. Lai Saheb Bai, 17 Ind. App. 150: 13 ALL. 53, supports the view that an adjudication made in pursuance of 0. 20, R. 16, Civil P. C., after a decree which has conclusively determined the rights of the parties has been passed, becomes a nullity if such an adjudication is made at a time when the defendant was dea3. In my opinion, this ease, on the contrary, supports the view that the decree in the present case is only voidable, and not a nullity. Lord Watson, delivering the judgment of the Judicial Com­mittee, observed: "An operative decree, obtained after the death of a defendant, by which the extent and quality of his liability, already declared in general terms, are for the first time ascertained, cannot bind the representatives of the de­ceased, unless they were made parties to the suit in which it was pronounced." It is significant that the words used are "cannot bind," and not that the decree is a nullity. The above mentioned observation was made in the following context: A decree for possession and mesne profits was made on 144-1856 against certain persons. The above mentioned observation was made in the following context: A decree for possession and mesne profits was made on 144-1856 against certain persons. An appeal preferred against the judgment and decree was dismissed on 31-3-1870 for want of prosecution. On 131877, the Court that passed the decree fixed the mesne profits and passed a decree in terms thereof. In due course, the Court that passed the decree attached the property of the defendants in execution of the decree. Objections were made to the execution of the decree, but they were overruled. The defen­dants then brought a regular suit on 3 3-1882. On 21-12-1882, the Subordinate Judge dismissed the suit. An appeal was preferred to the High Court, North-Western Province, which reversed the decision of the Subordinate Judge on 9-5-1885 and remanded the case for disposal on the merits. Daring the remand proceedings, the Subordinate Judge on 21-7 1885 found as a fact that the defen­dants' ancestor, Jhanguri Rai, was one of the parties in the suit brought in 1856. Against the decision of the Subordinate Judge, an appeal was taken to the High Court which on 5 8 1886 made an order remanding the case for retrial, among others, on the following point:-"(l) When did the defendant first seek to execute his decree against the plaintiffs either at Ghazipur or Shahabad ; and were they or any of their ancestors, viz : Jaiparkash or Jhanguri, parties to the execution proceedings which ended in possession of the pro­perty in suit, to which the decree of 1856 related, being given to the defendant by proceedings which ended on 12 7-1874?" The learned Subordinate Judge, on remand, found that it was not clearly proved that Jhanguri Rai was a party to the pro­ceedings in execution which resulted in the possession of the disputed property being given to the Maharaja in the year 1874. On 4 5-1887, the High Court reversed the judgment of the Subordi­nate Judge and gave a judgment for the defen­dants, apparently coming to the conclusion that Jhanguri Bai was dead when the decree for mesne profits was made. On 4 5-1887, the High Court reversed the judgment of the Subordi­nate Judge and gave a judgment for the defen­dants, apparently coming to the conclusion that Jhanguri Bai was dead when the decree for mesne profits was made. On appeal to the Judicial Com­mittee, Lord Watson observed : "In their opinion, it is an obvious mistake to assume tha1; the right of the Appellant to take the Respondents' land in execution for mesne profits wholly depends upon the fact of their ancestor being a party to the decree of 1856. None of the defendants were by that decree made judgment debtors for mesne profits, in the sense that their property could be attached by virtue of it. The decree, no doubt, found that defendants in the suit were accountable for mesne profits, and by that finding they were bound ; but it did not ascertain the amount of such profits, or determine the important question whether the defendants were liable jointly or severally in respect of their wrongful possession. There was no adjudication upon any of these matters until March, 1877, when for the first time the appellant obtained a money decree which was capable of being put into execution." [12] It is in the light of these facts that the operative part of the judgment to which I have referred, must be construed. It is significant that the decree passed upon the adjudication was sought to be set aside by a suit, and not in execu­tion proceedings. [13] The only case directly in point and which favours the contention of the appellants, namely, that an adjudication for completely dispensing of the suit made at a time when the defendant was dead after the preliminary decree had been passed when he was alive, is a nullity, is the case report­ed in Jangli Lall v. Laddu Earn, A.I.R. (6) 191S Pat. 430. 430. The learned Judges of the Patna High Court sought to distinguish the Calcutta ease reported in Munna Lal v. Sarat Chunder, A.I.R. (l) 1914 p. c. 160, by saying that that was a case governed by the Transfer of Property Act, and that they were dealing with a case governed by o. 84, Civil P. C. With all respect, I think the decision of the Full Bench of the Patna High Court runs counter to the decision of the Judicial Committee reported in Badha Prasad v. Lai Sahab Bai, 17 ind. App. 150 (P. c.), where an adjudication determining mesne profits at a time when the defendant was dead was regarded as not binding and rot a nullity. This case does not appear to have been brought to the notice of the learned Judges of the Patna High Court. [14] The learned Judges of the Patna High Court in Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 Pat. 430, apparently conceded that in Kali Pada Sarkar v, Hari Mohan, 41 Cal. 627, there are dicta which, if taken as of general application and apart from the context, would be wide enough to include the case of death, but they referred to a passage in the report which is in these terms; "This no doubt assumes that there is a valid decree in existence that is an adjudication by a Court of Justice, a decree or order which has not ceased to be operative and is capable of execution," and by implication suggested that the question of the validity of the decree was open to examination in execution. With all respect, I think the expres­sion 'valid decree' in the above quotation means valid decree on the face of it-a meaning which the Calcutta High Court has consistently given to it in its subsequent decisions. [15] My learned brother may be right in think­ing that Mr. Ghose who argued the case for the appellants faintly relied upon Harihar Prosad V, Umesh Chandra Das, 37 cal. W N. 812, but my impression is that he relied upon it very strongly. It is true that the ease reported in 37 cal. W. N. 812 is not a case in which the death of the defen­dant had occurred. Ghose who argued the case for the appellants faintly relied upon Harihar Prosad V, Umesh Chandra Das, 37 cal. W N. 812, but my impression is that he relied upon it very strongly. It is true that the ease reported in 37 cal. W. N. 812 is not a case in which the death of the defen­dant had occurred. But it is equally true to say that the learned Judges of the Calcutta High Court had the event of death also in their minds, for, they referred to an unreported case decided by Patterson J. of the Calcutta High Court Second Appeal No. 2879 of 1929 in which the de­fendant had died after the passing of the preli­minary decree, and Patterson J. held that the decree was not a nullity. Manifestly the principle enunciated in 87 Cal. W. N. 812 was arrived at not only on a consideration of the facts in that case, bat also on the facts present in S. A. No. 2873 of 1929 decided by Patterson J. [16] In Harihar Prosad v. Umesh Chandra, 87 Cal. W. N. 812, the test laid down was whether the Court had jurisdiction to pass a final decree. It was observed that obviously it had, and if that is so, it cannot be said that the decree amounts to a nullity. Decisions prior to the decision of the Judicial Committee in Lachmi Narain v. Balmakund, 51 Ind. App. 321 (P. 0.) were brought to the notice of the Calcutta High Court in that case, but the Court was content to say that those decisions were given before the decision of (the Judicial Committee. It is needless to emphasise that the decision in Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 Pat. 430 was given before the decision reported in 51 Ind. App. 321 (P. C.). [17] My conclusion then is that an adjudication made in pursuance of 0. 20, R. 16, Civil P.O., after a decree conclusively determining the rights of the parties was passed when the defendant was alive, ia not a nullity if the adjudication was made at a time when the defendant was dead. The ad­judication is merely voidable at the instance of the legal representatives of the deceased defen­dant. This view is in conformity with the decision of the Privy Council reported in Radha Prasad Singh v, Lal Sahab Bai, 17 Ind. App. The ad­judication is merely voidable at the instance of the legal representatives of the deceased defen­dant. This view is in conformity with the decision of the Privy Council reported in Radha Prasad Singh v, Lal Sahab Bai, 17 Ind. App. 150 (P.O ) to which I have referred in some detail. [18] In the course of discussion at the bar, the proposition that if the decree in the present case in regarded as a voidable decree, an objection as to its execution could not be sustained by the Court that passed the decree or the Court to •which the decree is transferred, was not disputed. As to whether the Court which passed the decree would be entitled, in the circumstances present in this case, to act under 0.47, or S. 151, Civil P.O. and set aside the decree as having been passed when the defendant was dead, I wish to express no opinion, as it is not necessary. The adjudica­tion in the case before us was sought to be execut­ed by the Court to which the decree was sent for execution. [19] The question then for determination is- whether a Court to which a voidable decree is sent for execution, can take evidence in the matter of an adjudication at the instance of the legal representatives who claim that the defendant was dead at the time of the making of the adjudica­tion in pursuance of o. 20, B. 16, Civil P.O., when neither the record of the case nor the decree on the face of it shows that the adjudication was made at a time when the defendant was dead. [20] The view which has found favour with my learned brother is apparently based on the principle that the powers of the Court to which a decree is sent for execution are the same as the powers of the Court in execution of the decree passed by itself. It seems to me, however, that where a Court, in execution of a decree passed by itself, is called upon to decline to execute the decree on the ground that the adjudication made under O. 20, R. 16, Civil P. C. was made against .. the defendant at a time when he was dead, it must first set aside its decree, whether under 0. 47 or S. 151, Civil P. C., before it can decline to execute the decree. the defendant at a time when he was dead, it must first set aside its decree, whether under 0. 47 or S. 151, Civil P. C., before it can decline to execute the decree. If it decides to set aside the decree, it does not exercise jurisdiction in the matter of the execution of the decree, but in the suit itself-a jurisdiction which the Court to which the decree is sent for execution does not possess. The power of a Court to set aside its own decree does not arise from its jurisdiction to execute the decree. The power is derived from the Court's jurisdiction in the suit, and has nothing to do with its jurisdiction to execute the decree. [2l] In this connection, I would once again refer to the Privy Council case reported in Jnanendra Mohan v. Babindra Nath, A. I. R. (20) 1933 P. C. 61 where the decree was regarded as a nullity. It was regarded as a nullity by reason of the fact that it was passed by a Court of Appeal when there was no statutory-right of appeal given against the decision. There was thus complete absence : of statutory jurisdiction and also complete absence of inherent jurisdiction, because no Court can pass a decree in the exercise of its inherent jurisdiction. No executing Court, therefore, whether it be the Court that passed the decree or the Court to which it was sent for exe­cution could execute it, there being nothing to execute. But where an adjudication is made in pursuance of 0. 20, E. 16, Civil P. C., even though ' it might have been made at a time when the defendant was dead, the defendant being alive when a decree conclusively deter mining the rights of the parties was passed, it is not a nullity with-in the meaning of the decision of their Lordships of the Privy Council reported in A. I. R. (20) 1938 P. C. 61, but an adjudication which is not binding upon the legal representatives within the mean­ing of their Lordships' decision reported in Radha Prasad v. Lal Sahab Rai, 17 Ind. App. 150 (P.O.). [22] In this view, I think the eases reported in Jagannath Fakirchand v. Shiv Narayan, A.I R. (24) 1937 Bom. 19, Brijmohan Das v. Piari, A.I.R, (24) 1937 ALL. 567; Kali Pada v. Hari Mohan, 21 cal. App. 150 (P.O.). [22] In this view, I think the eases reported in Jagannath Fakirchand v. Shiv Narayan, A.I R. (24) 1937 Bom. 19, Brijmohan Das v. Piari, A.I.R, (24) 1937 ALL. 567; Kali Pada v. Hari Mohan, 21 cal. w. N. 1104; and Erishnendra Nath v. Kusum Kamini Debi, 54 Cal. 166 (P. C.) support the contention of the appellant. My interpretation of the decision reported in A. I. R. '(24) 1937 Bom. 19 is that where an adjudication of the Court is rooted in jurisdiction given to it by statute, as in this case, the adjudication cannot be questioned in execution, on the ground that when the adjudication was made, the defendant , was dead. The adjudication made in pursuance of O. 20, B. 16, Civil P. C. was rooted in jurisdiction, the provisions of 0. 22, Civil P. C., not having been made applicable to proceeding sunder 0. 20, R. 16, Civil P. C. [22al In Brij Mohan v. Piari, A. I. R. (24) 1937 ALL. 667. the principle enunciated was: Broadly speaking, it if not permissible for the Court executing the decree to embark on an inquiry into facts which, if established, "would show that the Court passing It bad no jurisdiction to pass it. Where the jurisdiction of a Court to pass a decree depends on the existence of certain facts, the Court executing the decree shall refuse to take evidence in proof of those facts for the purpose of determining the jurisdiction of the Court passing the decree. ' [23] On a consideration of the decided cases which were cited at the bar, it seems to me that the jurisdiction of a Court may be viewed from 8 points of view : (1) Is the act of the Court done in the exercise of jurisdiction given to it by statute ? (2) is the act of the Court done in the exercise of its inherent jurisdiction is the act done in the absence of inherent jurisdiction ? Approaching the question raised before us from these points of view, I find that in all cases where the Courts have held that a decree is a nullity and, therefore, not liable to be executed, abate­ment of the suit, appeal or revision had occurred in accordance with 0. Approaching the question raised before us from these points of view, I find that in all cases where the Courts have held that a decree is a nullity and, therefore, not liable to be executed, abate­ment of the suit, appeal or revision had occurred in accordance with 0. 22, Civil P. C , that is to say, cases in which the question of the right to sue or otherwise was a live question in the suit, appeal or revision. In such cases by reason of the express provisions of 0. 22, Civil P. C., which some Courts have extended to revision applica­tion also, the Court is deprived of further jurisdiction to act in the matter, and there is complete absence of inherent jurisdiction. But where no abatement has occurred within the meaning of 0. 22, Civil P. C. and an adjudication is made in pursuance of O. 20, E. 16, Civil P. C., at a time when the defendant was dead, the adjudication is merely voidable, and not a nullity. [24] My learned brother has distinguished the case reported in Kali Pada Sarkar v. Harimohan, 21 cal. W. N. 1104 on the ground that that was a case where the defendant was alleged to be non compos mentis at the time of the trial. But the learned Judges of the Calcutta High Court, in deducing the principle, clearly had in mind the case of a dead defendant, for, they referred to the decision of the Judicial Committee of the Privy Council reported in Badha Prasad v. Lai Saheb, 17 Ind, App. 150 (P.O.)-a case of a dead defendant in which their Lordships had regarded the adjudication as to mesne profits not as a nullity but merely as not binding upon the legal representatives of Jhangurai. At p. 1108 of the report (21 0. W. N. 1104) the Court observed : v "The aubatanoo of the matter is that a proceeding to enforce a judgment is collateral to the judgment, and, therefore, no enquiry into its regularity or validity can be permitted in such a proceeding. On this principle, it can properly be held that a judgment against a person who was non compos mentis at the time of the trial, and yet was not represented by a legal guardian, is not to be Impeached in execution, but should be reversed or annulled in some direct proceeding taken for that pur­pose. On this principle, it can properly be held that a judgment against a person who was non compos mentis at the time of the trial, and yet was not represented by a legal guardian, is not to be Impeached in execution, but should be reversed or annulled in some direct proceeding taken for that pur­pose. Such a judgment can be attacked, for instance, by way of an application for review to the Court which made it, by way of an appeal of application for revision to a superior tribunal, or by way of a regular suit in a Court of competent jurisdiction! but the Court which made the decree cannot, when called upon to execute it, be invited to hold that the decree was erroneously or improperly made. The case before us is covered com­pletely by the decision of the Judicial Committee in Rashidunnessa v. limail Khan, 36 led. App. 168 (P.O.). The lunatic was, in the words of Sir Andrew Bcoble, never a party to the Bait in the proper sense of the term, and, consequently the question now raised is not a question which arises between the parties to the suit in which the decree was passed, that is to say, between parties who have been properly made parties in accor­dance with the provisions of the Code. The appellant haji contended that this view is likely to lead to lamentable results; that if the decree is allowed to be executed, the purchaser will acquire no title, and that much mis­chievous litigation will, as a consequence, follow. We appreciate the force of this contention; at the same time, there is no answer to the argument of the respondent that if the decree is directly challenged, as it should be, in an appropriate proceeding, the Court will no doubt remodel the decree in accordance with 0. 82, E. 2, read with R. 15, and thus safeguard his just rights, while, if the objection to execution prevails, he will be left with­out a remedy. We are of opinion that the safest course to follow is to adhere rigidly to the established principle that every order and judgment, however erroneous, is, in the words of Lord Cottenham in Chuck v. Creme, (1846) 2 Phill. 113 at p. 115. good, until discharged or declared inoperative, and that the execution Court cannot enquire into the validity or propriety of the decree. 113 at p. 115. good, until discharged or declared inoperative, and that the execution Court cannot enquire into the validity or propriety of the decree. This, no doubt, assumes that there is a valid decree in existence, that is, an adjudication by a Court of Justice, a decree or order which has not ceased to be operative and is capable of execution." [25] The last four lines of the judgment, namely : "This no doubt assumes that there is a valid decree in existence, that is, an adjudication by a Court of Justice, a decree or order which has not ceased to be operative and is capable of execution" were referred to by the learned Judges of the Patna High Court-in Jangli Loll v. Laddit Bam, A.I.R. (6) 1919 Fat. 480 as meaning that if a decree is not valid, the executing Court can refuse to execute it. With all respect, I think the expression "valid decree" referred to in Ka& Pada v. Hari Mohan, 21 C W. N. 1104 means a valid decree on the face of it, and not a decree the validity of which can be impugned by leading evidence as to a fact which, if proved, would entitle the legal representative to avoid the decree in execution proceedings. [26] I think the principle enunciated in Gorachand Haldar v. Prafulla Kumar, 63 cal. 166 F.B , 6 years after the Full Bench decision of the Patna High Court, is applicable to the facts of the c»se before us. The question referred to the Full Bench in 53 cal. 166 was-where a decree having been passed by the Court having no jurisdiction to pass it, is void and a nullity, is the executing Court competent to question its validity and refuse to execute it? It is to be observed that the reference assumed that the decree was void and a nullity and the answer was limited to the question whether the executing Court was competent to question its validity and refuse to execute it. The answer was naturally made in the affirmative having regard to the question propounded. Walmsly J., stated: "The learned Judges who made the reference are satisfied that the decree under consideration was made by a Court that had no jurisdiction to make it, and that in consequence it is void and a nullity. The answer was naturally made in the affirmative having regard to the question propounded. Walmsly J., stated: "The learned Judges who made the reference are satisfied that the decree under consideration was made by a Court that had no jurisdiction to make it, and that in consequence it is void and a nullity. It is not open to us, therefore, to consider any of the questions involved in that finding. We have to start by accepting the proposition that the Court that made the decree had no jurisdiction to make it and by that expression is meant that the Court had not such territorial jurisdic­tion as would authorise it to make the decree, and not that having jurisdiction, it exercised it erroneously. This distinction is of great importance, for, with all respect, I venture to think that the apparent conflict in reported cases in largely due to failure to keep this distinction clearly in view. It would be tedious to exa­mine numerous decisions in detail, arid it would not lead to any useful result. I think it may be said that the correct view, and the view for which there is a strong current of authority, is that where the decree presented for execution was made by a Court which apparently had not jurisdiction, whether pecuniary or territorial, or in respect of the judgment-debtor's person; to make the decree, the executing Court is entitled to refuse to execute it on the ground that it was made without juris­diction. Within these narrow limits, I think that the executing Court is authorised to question the validity of a decree." [27] Applying this principle to the facts before us, the Court in the present case passed a preliminary decree which cannot be challenged. After the passing of a preliminary decree, a suit cannot abate by reason of the death of the defen­dant. The question, therefore, of want of juris­diction to make an adjudication in pursuance of 0. 20, R. 16, Civil P. C., does not arise. All that can be urged, as "I have said in the earlier part of my judgment, is that the adjudication was made illegally or with material irregularity in the exercise of jurisdiction-a question which, in the light of the observations of the Pull Bench in the Calcutta case to which I have referred, cannot be raised in execution proceedings. All that can be urged, as "I have said in the earlier part of my judgment, is that the adjudication was made illegally or with material irregularity in the exercise of jurisdiction-a question which, in the light of the observations of the Pull Bench in the Calcutta case to which I have referred, cannot be raised in execution proceedings. [28] As I have said in the earlier part of my judgment, it may be conceded that if a decree properly so called, that is to say, a decree falling within the definition of sub-s (2) of S. 2 of Civil P. C., is for the first time passed when the defendant was dead, it would be correct to Bay the decree would be a nullity. But where a decree within the meaning of sub-s. (2) of S. 2, Civil P. C., has been passed when the defendant was alive, and such a decree requires further proceedings to be taken for the purpose of completely disposing of the suit, the adjudication in that behalf, call it a final decree if you will, cannot be regarded as a nullity because the adjudication was made at a time when the defendant was dead. Viewed in this light, with all respect, it is difficult to agree with what has been stated by my learned brother at pp. 8, 9 and 10 of his judgment. [29] As I have taken the view that the adjudication in this case, made in pursuance of 0. 20,. 16, is not a nullity but merely voidable, and lat it cannot be avoided in execution proceedings, specially before the Court to which the] decree is sent for execution it is not necessary to consider the question of the application of the rule of constructive res judicata in so far as it relates to execution proceedings-a question ap­parently based on the contention that the legal representatives of the deceased defendant in this case had allowed an order for execution of the decree to be made, although it must be said that' the contention is founded on the principle of the decision reported in Fateh Kumar v. Kishen Ghana, A. i. R. (22) 1935 cal. 816-vide last para of the report. For the same reason, it is not necessary to refer to the second contention based upon the alleged adjustment of the decree. 816-vide last para of the report. For the same reason, it is not necessary to refer to the second contention based upon the alleged adjustment of the decree. [30] My conclusion then is that the order of the Court to which the decree had been sent for execution, declining to execute the decree, should be set aside and it be directed to dispose of the execution application in accordance with law. Accordingly I do so. [31] I wish to express no opinion as to whether in the event of legal representatives applying to the executing Court for an adjournment on the ground that they would move the Court that passed the decree for setting aside the adjudica­tion, the executing Court should or should not adjourn the proceedings, to enable them to do so. [32] Ram Labhaya J.-This first miscellane­ous appeal arises out of execution proceedings. It is directed against an order of the Court to which execution of the final decree in the case was transferred. The Court (Subordinate Judge, L.A.D.) by its order dated 29th November 1948 allowed an objection of the legal representatives of the judg­ment-debtor, against whom the decree was sought to be enforced. The objection was that the judg­ment debtor had died before the final decree was passed. The decree, therefore, was a nullity and in executable. This objection prevailed and the application for execution was dismissed. The de­cree-holder has appealed. [33] The final decree which was sought to be executed was passed by the Sub-Judge, Alipore, on 27th March 1945. It was against one Bhagaban Chandra Chaudhury. He died before the final decree was passed. The legal representatives suc­ceeded in producing unimpeachable evidence which showed that Bhagaban Chaudhury died on 24th January 1945. There was no evidence in rebuttal from the side of the decree-holder. The Court, therefore, found that the death of Bhaga­ban Chaudhury occurred on 24th January 1945. In the memo of appeal presented to this Court, the finding as to the date of the death of Bhaga­ban Chaudhury has not been challenged, nor was it disputed in the course of the protracted argument before us. We have, therefore, to proceed on the basis that Bhagaban Chaudhury died on 24th January 1945 before the final decree was passed. [34] The case is not covered by 0. 22, B. 6. We have, therefore, to proceed on the basis that Bhagaban Chaudhury died on 24th January 1945 before the final decree was passed. [34] The case is not covered by 0. 22, B. 6. It was not contended either in the Court below or before us that the death of Bhagaban Chaudhury occurred between the conclusion of the hearing and the pronouncement of the judgment. There is no evidence on this point. Bhagaban Chaudhury's legal representatives were not brought on the record before the final decree was passed. The final decree, in these circumstances, was against a person who did not exist at the time. The decree in the case would be apparently a nul­lity. No Court of law has the power or the juris­diction to pass, a decree or an order against a dead person. Its incompetence arises from the fact that the person whom the order is intended to bind does not exist. The dead person is out of its reach. The decree cannot be executed against any person not impleaded before the decree. It, therefore, remains a nullity in law and inexecu­table. It is now settled law that such a decree has no legal effect. The authority on the point is voluminous and without any divergence. It is not necessary to examine all the cafes bearing on the point. Some of these cases are Nanjayya Mudali v. Shanmuga Mudali, 38 Mad. 684, Imdad Ali v. Jagan Lal, 17 ALL. 478, Bhanji Singh v. Bhagwati Prasad, A. I. R. (7) 1920 Nag. 61, Ghasiram v. Shiba Prasad Singh, A. I. R. (24) 1937 Pat. 321, Badha Prasad Singh v. Lal Saheb Bai, 17 ind. App. 150 (P. c.), Sripat Narain Bai v. Tirbeni Mitra, 40 ALL. 423, Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 Pat. 430, Anwarul Haq v. Nazar Abbas, A. I. B, (12) 1925 Lah. 494, Ambika Prosad v. JhinaJc Singh, 45 ALL. 286, Basawanjanayulu v. Bamalingayya, A. I. R. (25) 1938 Mad. 115, Mahani Chinera v. Bamjan Ali, A. I. R. (27) 1940 Pat. 243, Gulab Bano v. Anjuman Imdad Bahami Qarza, A. I. R. (24) 1937 Lah. 63. They support the proposition that if the defendant dies before the hearing is concluded and the decree is passed without bringing his legal representatives on the record, the decree is a nullity and incapable of execu­tion. 243, Gulab Bano v. Anjuman Imdad Bahami Qarza, A. I. R. (24) 1937 Lah. 63. They support the proposition that if the defendant dies before the hearing is concluded and the decree is passed without bringing his legal representatives on the record, the decree is a nullity and incapable of execu­tion. The correctness of this position was not challenged in the memo of appeal and even in. the argument addressed to us the learned counsel has not seriously disputed it. He has, however, referred us to one case reported in Harihar Pro-sad v. Umesh Chandra Das, 37 Gal. 812 and has suggested faintly on the strength of this autho­rity that the decree in this case would be void­able and not void. There is no force in this argument. The authority relied on does not sup­port it. In that case, the decree was not against a dead person. Very different consideration would govern a case where the decree is passed against a person who is alive though he is not the proper legal representative of the deceased person. [35] In this case defendant Bhagaban Choudhury was alive when the preliminary decree was passed. That decree was valid. The decree was for accounts. The final decree in the case could be passed after the settlement of accounts. It could be passed only against the defendant who was alive or against his legal representatives if duly brought on the record. If defendant died before the hearing was concluded, the final decree would be as much a nullity as any other decree passed against a dead person. In this respect no distinction can be made between a preliminary and a final decree. Any decree against a dead person would be a nullity if it is passed before the conclusion of the hearing and without bringing on record the legal representatives of the defendant who has died. In Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 pat. 430 (P B.), it was the final decree that was found to be a nullity by reason of its having been passed against a dead person. The view of the matter that I take also finds support from Badha Prasad v. Lai Sahib Bai, 13 ALL, 53 (P.O.). In Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 pat. 430 (P B.), it was the final decree that was found to be a nullity by reason of its having been passed against a dead person. The view of the matter that I take also finds support from Badha Prasad v. Lai Sahib Bai, 13 ALL, 53 (P.O.). [36] The third point that arises for determination is whether a Court, to which the execution of the decree has been transferred, can entertain an objection to the effect that the decree sought to be executed is a nullity on account of its having been passed against a dead person. The learned counsel for the appellant has argued that an exe­cuting Court and also the Court to which execu­tion has been transferred cannot go behind the decree. It has no jurisdiction or power to go into the question whether the Court passing the decree had jurisdiction-territorial, personal or pecuni­ary. It must take the decree as it stands. It is nod entitled to question its validity on the ground of absence of jurisdiction of the three varieties stated above. He has relied on Jagannath Fakir Chand v. Shiv Narayan, A.I.R. (24) 1937 Bom. 19; A.I.R. (20) 1933 Gal. 805 (85?); A.I.R. (24) 1937 Cal. 380 (?); Brij Mohan Das v. Piari, A. I. R. (24) 1937 ALL, 567 ; Kali Pada v. Hari Mohan, 21 cal. w. N. 1104 and Gorachand Haldar v. Prafulla Kumar, 53 Cal. 166, in support of his contention, and has urged that the objection raised in this case being that the Court passing the decree had no jurisdic­tion to pass it, the executing Court could not hear or determine it. [37] I have carefully considered the authorities relied on by the learned counsel. I do not think they support his contention. A Court to which execution of a decree is transferred cannot go be­hind the decree. In this respect, it has the same limitations in its jurisdiction as the executing Court is subject to. It is beyond the pale of controversy that both the executing Court and the Court to which execution may be transferred can­not go behind the decree. It is equally unques­tionable that a Court executing the decree can go into the question of the exportability of the decree. It is beyond the pale of controversy that both the executing Court and the Court to which execution may be transferred can­not go behind the decree. It is equally unques­tionable that a Court executing the decree can go into the question of the exportability of the decree. The decree may be in executable and if an objec­tion is raised to its excludability, the objection would be competent and the executing Court can­not refuse to entertain it. The decree may be in executable by reason of its character. It may merely be of a declaratory nature. It may have other defects like want of proper stamp in the case of a partition decree and a decree meet may hare all the appearance of a decree but not its substance as when it is passed against a dead man. In the last mentioned case a decree sheet would be there but there would be no person against whom it could be executed. No effective decree comes into existence in such a case. The decree sheet does not amount to a decree in law. It has not got the force of the decree. It cannot be executed. The person against whom it may purport to have been passed being non-existent is inaccessible to the Court. The decree again Cannot be executed against any living person for where a decree is passed against a dead person before the conclusion of the hearing, it cannot be executed against his legal representatives. The legal representatives can be proceeded against only if the case is covered by S. 50, Civil P. C. as held in Bhanji Singh v. Bhagwati Prasad, A.I.R. (7) 1920 Nag. 61. The view taken in this case was that 'for a person to be a judgment debtor, le must be a party to a suit or appeal. A person who dies before a decree is passed against him is not a judgment-debtor and conse­quently the decree cannot be enforced against his legal representatives under 8. 50 Civil P. C. as that section applies only where a judgment-debtor dies subsequently to the passing of the decree.' I agree entirely with the view taken in this case. The result is that in the case before us there is no person against whom the decree can be executed. 50 Civil P. C. as that section applies only where a judgment-debtor dies subsequently to the passing of the decree.' I agree entirely with the view taken in this case. The result is that in the case before us there is no person against whom the decree can be executed. Where a person against whom a decree is sought to be executed raises the objection that it was passed against a dead person and was a nullity and therefore could not be executed against him even though he may be the legal representative of the deceased, in order that the decree may be found to be executable against the legal represen­tatives it must be held that the decree was passed against the defendant while he was alive or that his death occurred after the conclusion of the hearing in the case. The objection essentially relates to the executability of the decree against the legal representatives and there is no reason why a legal representative against whom such a decree is sought to be executed must be forced to institute a suit for setting aside the decree or even to apply to the Court which passed the decree to set it aside. [38] The decree being a nullity does not require to be set aside and if it is sought to be enforced against a legal representative he can show that it is a nullity and inexecutable. When the execut­ing Court takes cognisance of such an objection and gives effect to it, it does not go behind the decree at all. It merely holds that no decree capable of execution exists. It inquires into nothing which the Court passing the decree could inquire before the decree was passed. By enter, tainting the objection, therefore, it does not go behind the decree. This position was recognised in Nathan S. A, v. S, B, Samson, A. I. R. (18) 1931 Bang. 252 (F. B ) which was approved and followed in Jagannath Fakir Chand v. Shiv Narayan, A I.E. (24) 1937 Bom 19. By enter, tainting the objection, therefore, it does not go behind the decree. This position was recognised in Nathan S. A, v. S, B, Samson, A. I. R. (18) 1931 Bang. 252 (F. B ) which was approved and followed in Jagannath Fakir Chand v. Shiv Narayan, A I.E. (24) 1937 Bom 19. [39] The learned Judges of the Rangoon High Court made it absolutely clear in their judgment that the proposition that they were laying down in the case did not cover the case of a person who ' was objecting to the execution of a decree on the ground that the decree was a nullity as it had been passed against a dead person. The proposi­tion laid down by their Lordships was that 'a subsisting decree passed be a duly constituted Court that has not been set aside in proceedings .by way of appeal, revision, review or otherwise be due process of law is not to be treated as a mere nullity but it is binding and conclusive against the parties there to duly impleaded in the suit. A Court which a decree has been transform for execution must take tie decree as it stands and is not entitled to question the validity of the decree upon the grounds that the decretal Court bad no juris­diction-territorial, personal or pecuniary to pass it." [40] This, however, is not the whole of the proposition laid down in the case. A Court which a decree has been transform for execution must take tie decree as it stands and is not entitled to question the validity of the decree upon the grounds that the decretal Court bad no juris­diction-territorial, personal or pecuniary to pass it." [40] This, however, is not the whole of the proposition laid down in the case. It was further laid down that 'the executing Court most be satisfied that the decree of which execution is sought it subsisting and the executing Court can only execute a 'decree' and "if what purports to be a decree has been passed by a Court not duly constituted in accordance with law such an adjudication is not a decree at all in the eye of the law." According to the learned Chief Justice "such a decree in the strict tense of the term is a nul­lity, a 'mere nothing", that need not be set aside and may be disregarded by any Court to which it is presented and so also a decree passed against a dead person." In regard to decrees against dead person, he fur­ther observed as follows : "It would seem that an executing Court would also be entitled to refuse to execute a decree against a dead person, whose legal representatives have not been made parties to the suit before the decree was passed non a further and narrow ground, for the arrest of a dead man in execution of a decree cannot be effected and on his death his property would have passed to his heirs, while, if execution is sought against the heirs or legal repre­sentatives of the dead person it would be a fatal objec­tion that they were not parties to the decree." He thus distinguished decrees passed against dead performs from the decrees against persons who were alive whether they were under any disability or not. Again, the learned Chief Justice when considering the authorities which were cited in support of the proposition that on exe­cuting Court could refuse to execute a decree, if it was shown to be a nullity, distinguished cafes in which the decree was passed against a dead person from those where it was sought to be ' shown that the decree was a nullity by reason of the Court which passed it not having jurisdiction -territorial, personal or pecuniary. He observed , as follows': "The learned Advocate relied also upon the cases cited above in which it has been held that where a decree has been passed against a dead person the executing Court is entitled to challenge its validity on the ground that it was passed without jurisdiction and was a nullity, Both those Cases, in my opinion, do not assist the respondent because as has already been pointed oat in such cases, the decree that it passed was not a 'decree' at all in the , eye of the law and therefore in executable, and could be disregarded by the executing Court." [41] It is apparent from what has been said above that the proposition laid down in the Rangoon case does not include within its scope an objection from a person sought to be proceed­ed against as a legal representative that the de­cree cannot be executed against him as it was a nullity on account of its having been passed against a dead person. [42] In Jagannath Fakir Chand v. Shiv Narayan. A. I. B (24) 1937 Bom. 19, the view expressed in Rangoon case was accepted without any qualifica­tion. The Bombay case, in these circumstances, could not be regarded as an authority for the con­tention raised by Mr. Ghosh. The decree in the Bombay case was not against a dead person and the question before us now did not arise in that case. Four caste from the Calcutta High Court have been cited. They are all distinguishable on the same ground. The decrees in these cases were not against dead persons and were not sought to be executed against the legal repre­sentatives. It is net necessary for us in this case to decide whether it is open to a defendant who is alive on the date the decree is passed to urge in execution that the decree against him was passed by a Court which had no jurisdiction- territorial, personal or pecuniary. His case stands obviously on a different footing. He could raise all those points before the decree. He had reme­dies by way of appeal, review or revision. Should he be permitted to raise objections to the juris­diction of the Court in execution ? There is considerable divergence of authority on this point. His case stands obviously on a different footing. He could raise all those points before the decree. He had reme­dies by way of appeal, review or revision. Should he be permitted to raise objections to the juris­diction of the Court in execution ? There is considerable divergence of authority on this point. The Privy Council view seems to be that objection as to absence of inherent jurisdiction could be raised: vide Jnanendra Mohan v. Rabindra Nath, A. I. R. (20) 1933 P. 0 61. I prefer not to give any decision on that question as it is not necessary for us to decide it for the purposes of this case. In this view of the matter, a detailed consideration of the question that was considered in these Calcutta cases and also in Brijmohan v. Piari, A. I. H. (24) 1937 ALL. 567 is not necessary. These cases are easily distinguishable and there­fore are of no assistance to us in coming to a decision in the present case. [431 On the other hand, all Cases in which the question now before us arose have recognised that it is open to the executing Court as well as to the Court to which execution is transferred to take cognisance of the objection that the decree is a nullity on account of its having been passed against a dead person. In some of these cases the effect of o. 21, B. 7 has not been considered These are Anwarul Haq v. Nazar Abbas, A. I. R. (12) 1225 Lah. 494, Nanjayya Mudali v. Shan, muga Mudali, 38 Mad. 681, Aratu Misra v. Mani Jena, 17 Cal. L, j. 634, Jangli Lall v. Laddu Bam, A. I, R. (6) 1819 Pat. 430. It has been held in all these cases that a decree pasted against a dead person before the conclusion of the bearing and without bringing his legal representatives on the record is a nullity and an objection to the decree being a nullity can be raised by persons against whom the decree is sought to be executed and the executing Court can entertain it. In Cantonment Board v. Kishen Lal, A. I. R. (21) 1934 ALL. In Cantonment Board v. Kishen Lal, A. I. R. (21) 1934 ALL. 609, a Full Bench decision of the Allahabad High Court, it was held that where a decree was passed against a defendant who was dead at the time, the decree was nullity and could not be executed against the heirs of the defendant. In the view of the learned Judges, it is the duty of the executing Court to inquire into the question whether the defendants, against whom the decree purports to have been passed, were in fact alive or dead on the date of the decree, and if satisfied on evidence that they were dead, to hold that the decree was incapable of execution. The learned Judges relied on a Privy Council deci­sion Badha Prasad v. Lai Sahub Rai, 17 Ind. App, ISO (P. C.) in support of the view that found favour with them. [44] In Badha Eishen Sohan Lai v. Bihari Lai Asa Nand, A. I. R. (21) 1934 Lah 117 (2), the effect of 0. 21, B. 7 was considered. The learned Judge (Bhide J.) found that so far an the objec­tion to the decree being a nullity on the ground that it was passed against a dead person was concerned, there was no difference between the powers of the Court which passed the decree and the Court to which the decree was transferred for execution. He relied on Atherton & Co v. Habib Bakhsh, A. I. B (16) 1929 ALL. 380 in support of this view. The view taken in A. I. R. (2l) 1934 Lab. 117 was affirmed in Badha Kishen Sohan Lal v. Bihari Lal Asa Nand, A. I. R. (22) 1985 Lah. 439 In that case also, the objection was raised in the Court to which the execution had been transferred. In Sripat Narain Bai v. Tirbeni Misra, 40 ALL. 423 also the effect of 0. 21, R. 7 was considered and it was held that the alleged representatives of a judgment. 439 In that case also, the objection was raised in the Court to which the execution had been transferred. In Sripat Narain Bai v. Tirbeni Misra, 40 ALL. 423 also the effect of 0. 21, R. 7 was considered and it was held that the alleged representatives of a judgment. debtor could raise the objection that the decree was passed against a dead man and was a nullity and incapable of execution against them On the effect of o. 21, B. 7 it was observed as follows : "It is contended that there has been a change in the new Code of Civil Procedure by the omission from O. 21, B. 7of the word 'jurisdiction.' We think that this alteration in no way modified the authority of the case to which we have referred. No question of jurisdiction' of the Court to make the decree arisen because no Court can make a decree against a dead roan; and a decree so made is a nullity." [45] The learned counsel for the appellant has stressed relying on Jagannath Fakir Chand v. ShivNarayan, A. I. R.'(24) 1937 Bom. 19 that the effect of the omission of the words 'or of the jurisdiction of the Court which passed it' from O. 21, B. 7 is to preclude the Court to which the decree i.e. transferred for execution to deal with any question relating to the jurisdiction of the Court which passed the decree and, therefore, it could not re­fuse to execute the decree even if it had been passed against a dead person. This contention re­ceives no Support from the Bombay case, at least as regards the objection that the decree is a nul­lity on account of its having been passed against a dead person. Rule 7, as ii stood before the amendment, provided that the Court to which the decree was sent, shall cause copies of the decree and order and certificates to be filed without any further proof of the decree or order for execution or of the copies thereof, or of the juris­diction of the Court which passed it, unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof. The words 'or the jurisdiction of the Court which passed it' have now been omitted. The words 'or the jurisdiction of the Court which passed it' have now been omitted. The rule now requires the Court to cause copies and certificates to be filed without any further proof of the decree or order for execution unless the Court, for any special reasons to be recorded under the hand of the Judge, requires such proof. Its effect is to permit the Judge for special rea­sons to require proof of the copies of the decree and order and the certificates filed in his Court. The power that it formerly had to go into the question of the jurisdiction of the Court which passed the decree was taken away. The obvious result of the omission is that the executing Court and the Court to which the decree is transferred are placed on the same level except that the transferee Court may demand proof of the decree or order for special reason. Section 38, Civil P. C., provides that a decree may be executed either by the Court which passed it, or by the Court to which it is sent for execution. Section 42 deals with the powers of the Court to which a decree is sent for execution. It provides that the transferee Court shall have the same powers in exe­cuting such decree as if it had been passed by itself. There can be no doubt that generally the powers of the Court to which a decree is sent for execution are the same as that of the Court which passed it. Order 21, E. 7 deals only with the proof of copies and certificates filed. So, it does not in any way place any further limitation on the power of the transferee Court to which the executing Court is not subject. The general rule that the executing Court shall not go behind the decree is applicable to both the Courts. But this rule has no application where the objection is that the decree is a nullity on the ground that it was passed against a dead person. I do not think the learned Judges of the Bombay High Court made any distinction between the powers of the exe. outing Court and that of the Court to which the decree was transferred. I do not think the learned Judges of the Bombay High Court made any distinction between the powers of the exe. outing Court and that of the Court to which the decree was transferred. What they held was that the executing Court was not entitled to question the validity of the decree on the ground that the decreeing Court had no jurisdiction-territorial, personal and pecuniary. Having held that the transferee Court also could not question the vali­dity of the decree on the grounds above stated, they found support for this decision from the language of 0. 21, a. 7 also. If, however, the learned Judges intended to make any distinction between the powers of the executing Court and the Court to which the decree is transferred, with great respect to them, it would refer not to agree with them. The Only distinction between the powers of the two Courts is that which is expressly stated in 0. 21, E. 7, viz., that the transferee Court for special reasons to be recorded may demand proof of the copies and certificates filed. [46] Mr. Ghosh has not been able to cite any authority in support of the proposition that it is not open to the persons against whom a decree is sought to be executed to contend in execution either in the executing Court or in the Court to; which execution is transferred that the decree is a nullity by reason of its having been passed against a dead person. It is obvious, therefore, that the authority is all one way and by no means meager. His contention thus receives no support either from precedent or reason. [47] His next contention is that the respondents are estopped from contending that the decree sought to be executed is a nullity. The contention rests on Fateh Kumar v, Kishen Ghand, A. I. R. (22) 1935 cal. 816, which in my opinion, does not lend it any support. In that case, it was laid down that where in the execution of a decree, the judgment-debtors induce the decree-holders to agree to post­ponement of sale, in order that they might have an opportunity of paying the amount, they cannot be allowed to turn round afterwards and urge a delayed objection against the execution. In that case, it was laid down that where in the execution of a decree, the judgment-debtors induce the decree-holders to agree to post­ponement of sale, in order that they might have an opportunity of paying the amount, they cannot be allowed to turn round afterwards and urge a delayed objection against the execution. It is pointed out that the judgment-debtors in the case before us did apply for postponement of the sale and got time from the Court to pay the decretal amount. This was in the course of the first; exe­cution. Time was granted by order of the Court dated 31 5-1946. The execution proceeding was dis­missed in default on 4-11 1946 though the attach­ment was allowed to continue. In spite of this circumstance, the case relied on by the learned counsel has no application to the facts of the case. In that case the objection which the judgment-debtors wanted to raise was that they were not partners of the firm and the decree could not be executed against them personally. The judgment-debtors had raised this objection in a previous execution application but they did not proceed with it and had allowed to be dismissed in de­fault. The objection was not that no decree existed. On facts, therefore, the case is easily distinguish­able. An objection that a decree is a nullity or that no decree exists is not capable of waiver and can be raised at any stage of the execution pro­ceedings so long as the, decree remains unsatisfied. The executing Court derives all its jurisdiction from the existence of a decree capable of execution Where no such decree exists, it has no juris­diction to proceed in the matter. Besides, the "Court passing a decree against a dead man also acts „> without inherent jurisdiction. In S. A. Nathan v. S. R. Samson, A. I. R. (is) 1931 Bang. 252 at p. 256, the learned Chief Justice observed as follows: "Again the executing Court can only execute a 'decree' and if what purports to be a decree has been passed by a Court not duly constituted in accordance with law, such an adjudication is not a decree at all in the eye of the law." Where no decree has come into existence, the executing Court has nothing to execute. The objection that a decree is a nullity relates to the jurisdiction of the executing Court also. The objection that a decree is a nullity relates to the jurisdiction of the executing Court also. No con-sent on the part of the judgment-debtors can confer jurisdiction on the executing Court, which it does not possess. Again, what was a nullity in law could not be transformed into an executable decree by mere consent of the judgment-debtors, nor would their offer to pay the money without raising the objection that the decree did not exist confer any jurisdiction on the executing Court which it did not possess. Where the Court has no inherent jurisdiction, no amount of consent or waiver can create it, nor can estoppel against a party confer jurisdiction on a Court which it does not possess. This was the view taken in Bepin Behan v. Mohit Kumar, A I. R. (29) 1942 Cal. 496. It affords a complete answer to the conten­tion raised by the learned counsel which must, therefore, be repelled. [48] The learned counsel has also contended that the respondents were precluded from raising the objection by reason of the bar created by the rule, of constructive res judicata which applies to execution proceedings. He has relied on Bapanna v. I. Vengayya, A. I. H. (24) 1937 Mad. 611.. It was laid down in this case that 'Section 11 Civil P. C. does not apply to execution proceeding but for the same reasons that 8. 11 became necessary for controlling the trial of suits, it has been necessary to apply the same or similar principles to exe­cution proceedings. Caution has, however, to be exercised in applying the principle of constructive res judicata to execution proceedings. It can only apply to cases where the Court could not have acted as it did if the judgment-debtor Had successfully raided the points which are sought to be held by this principle against him. In general, a Court cannot order execution unless It is satisfied (i) that the petitioner has a right to execute; (ii) that the judgment debtor is liable to satisfy the decree; (iii) that the decree is executable; and (iv) that it is not barred by limitation. If, therefore, an executing Court orders execu­tion to proceed, it must be presumed to have held that all these conditions are satisfied. If, therefore, an executing Court orders execu­tion to proceed, it must be presumed to have held that all these conditions are satisfied. If a judgment debtor with due notice of the proceedings fails to raise any objection on any of the»e grounds, it must be held by the principle of constructive res judicata that his failure to do so has the fame legal effect as if it had been raised and decided against him." [49] The principle laid down above was not applied to the plea that the amount for which the decree was sought to be executed was not the correct amount due by the judgment-debtor This plea was found not barred by the rule laid down 19E2 Assam/9 & 10 in this case. I think the authority is of no assist­ance to us. It assumes the existence of a decree. The matters then that may be regarded as impliedly decided by the Court when it proceeds to execute it would all relate either to the interpre­tation of the decree or the right of the petitioner to execute it. The four points which may be regarded as impliedly decided against a judgment-debtor in the absence of any objection from him do not cover the question whether a decree exists or not. Where the existence of the decree is itself disputed this decision will have no application. As observed by the learned Judges themselves, caution has to be exercised in applying the prin­ciple of constructive res judicata to execution proceedings. Section 11 does not apply in terms. The principle may be applied within certain re­cognised limits. No authority has been cited in which the objection now before us was found to have been decided by implication by the mere fact that the executing Court proceeded to execute the decree without objection from the legal repre­sentatives. The executing Court cannot go behind the decree. What it does decide expressly on objection or impliedly without objection are matters covered by S. 47, Civil P. C. They relate to the execution, discharge and the satisfaction of the decree where a decree exists. The question now before us is not included within the scope of that enquiry and could not be brought within the scope of the rule of constructive res judicata. An express decision alone could create the bar by way of res judicata,. The question now before us is not included within the scope of that enquiry and could not be brought within the scope of the rule of constructive res judicata. An express decision alone could create the bar by way of res judicata,. The principle of constructive res judicata, would not prevent this objection from being raised. It essentially relates to and affects the jurisdiction of the Court. [50] Order 21, R. 2 has also been the subject-matter of discussion during the course of the argument. The legal representatives of the judg­ment-debtors pleaded that the decree stood ad­justed by an agreement under which a certain sum was to be paid by them within a month of the date of the settlement and that on payment; of that sum the decree was to stand satisfied. The decree holder was insisting on executing the entire decree as it stood. The alleged adjustment was ignored by him. The learned Subordinate Judge did not give any decision on this point as he found that the decree itself was a nullity. During the course of the argument in this Court this plea on the part of the judgment debtors was noticed and the case was remanded to the execu­ting Court for a finding whether an adjustment otherwise valid and capable of certification under O. 21, R. 2 had been proved. The learned Judge has found that such an adjustment was made. The decree-holder, who had contested the pita of adjustment in the executing Court, did not concede it even in his grounds of appeal. But when the case was remanded for inquiry into the matter, it was conceded on his behalf in the Court below that there was an adjustment as pleaded by the judgment debtors. The question now is whether the Court had any jurisdiction to certify this adjustment under o. 21, E. 2. The provisions con­tained in O. 21, E. 2 can apply only if there is a decree under which money is payable and is paid out of Court or the decree is otherwise adjusted in whole or in part. A decree must exist before O. 21, E. 2 could be applied. An executing Court has to exercise jurisdiction if it certifies adjust­ment or otherwise takes notice of it. That jurisdiction would not be there if there is no decree in existence. A decree must exist before O. 21, E. 2 could be applied. An executing Court has to exercise jurisdiction if it certifies adjust­ment or otherwise takes notice of it. That jurisdiction would not be there if there is no decree in existence. The provisions of this rule also are not of any avail to the decree-holder. It is also a question whether he could be permitted to rely on this adjustment when he did not accept the posi­tion in his grounds of appeal to this Court and insisted on being allowed to execute the entire decree. [6i] For reasons given above this appeal must fail and ought to be dismissed. I would, however, leave the parties to bear their own coats through­out. [52] Deka J. - This is an appeal that arises out of an order passed by the learned Subordinate Judge, L. A. D. on 29-11-1948 in Title Execution Case No. 8 of 1947 upholding the objection raised on behalf of Mt, Puspabala Chaudhury and ano­ther and dismissing the petition for execution filed by Ajoy Kumar Mukhopadhya. [63] The matter was heard by a Division Bench consisting of the Hon'ble the Chief Justice and Hon'ble Earn Labhaya J. who differed on certain essential points raised in the appeal and the matter has come up to me under cl. 86, Letters Patent of the High Court of Judicature at Port William, which applies to the Assam High Court as well, for a decision on the points of divergence between the two Hon'ble Judges. [54l There was a fresh point raised before me in support of the order of dismissal of the execution proceeding but that was not raised before the Division Bench when the appeal was heard. That point relates to the maintenance of the appli­cation for execution in the absence of notice under O. 21, E. 16, Civil P. C. on the transferor and the judgment-debtor by Ajoy Kumar Mukhopadhya who is a transferee or assignee of the decree from the original decree-holder. That point, however, not having been raised earlier, I am not called upon to decide that point and give any deci­sion on it. [55] The facts admitted by both parties are as follows: One Dhirendra Mukherjee obtained the preliminary decree against Bhagaban Chaudhury in a suit for accounts in the Subordinate Judge's Court at Alipore. The date of the preliminary decree is not known. [55] The facts admitted by both parties are as follows: One Dhirendra Mukherjee obtained the preliminary decree against Bhagaban Chaudhury in a suit for accounts in the Subordinate Judge's Court at Alipore. The date of the preliminary decree is not known. Bbagaban Chaudhury died on 24-1-1945 and a final decree in the suit for accounts was passed by the Alipore Court on 27-3-1945 that is, after the death of the defendant and his heirs were not made parties thereto. No execution proceeding was started in Alipore Court but an application for execution was made and the same was transferred from Alipore to the Subordinate Judge's Court, L. A. D. at Gauhati at the instance of the original decree-holder. The Subordinate Judge's Court at Gauhati registered it as Execution case NO. 6 (T) of 1946 of the said Court. It was eventually struck off for non-prosecution. Subsequently Execution case NO. 14 of 1946 of the Subordinate Judge's Court was started by Ajoy Mukhopadhya as an assignee from the original decree-holder and that proceeding was struck off as he produced no evidence of assign­ment of the decree in his favour as alleged by him. Thereafter Ajoy Mukhopadhya started the present Execution case (in Ex. Case No. 8 of 1947 in the Subordinate Judge's Court at Gauhati and had notices issued on the heirs of Bhagaban Chaudhury who had been shown as dead in all the execution proceedings. [56] The heirs of Bhagaban Chaudhury who are the respondents in this appeal at first raised the plea that there was an adjustment of the decree between the decree-holder and themselves and secondly that the decree was not binding-upon them as the final decree was passed in the absence of their husband who was already dead and they not having been brought on the record. [57] The learned Subordinate Judge found in favour of the objectors or the heirs of the original judgment debtor and held that the final decree was ineffective or void and could not be executed and he rejected the prayer for execution of the decree. [57] The learned Subordinate Judge found in favour of the objectors or the heirs of the original judgment debtor and held that the final decree was ineffective or void and could not be executed and he rejected the prayer for execution of the decree. An appeal was filed against this order dated 29-11-1948 to this Court whereupon th© Division Bench sent the case back for remand and an enquiry as to whether there was an adjustment and the learned Bubordinate Judge forwarded his finding namely that it has been admitted by the assignee of the original decree that there was such an adjustment. [58] The matter having come up for a fresh hearing after the receipt of the finding of the Subordinate Judge on the point of adjustment of the decree, Earn Labhaya J. held that the final decree obtained in the absence of the original de­fendant and without making "his legal heirs party,, was a void decree and the transferee executing Court had jurisdiction to go into the point as to whether the final decree was passed after the death of the defendant and if the decree had been passed when the defendant was dead it could refuse to execute the decree on the basis that it was a void decree. [59] The Hon'ble the Chief Justice on the her hand holds the view (l) that the final decree obtained after the death of the defendant in a suit for accounts without making his heirs party was not a void decree but was only voidable and (2) that the executing Court and more so the trans­feree executing Court had no jurisdiction to go into the matter and examine for itself as to whe­ther the decree was valid or not. In other words it could not go behind the decree as it appeared from the decree-sheet. [60] I am, therefore, called upon to give my opinion on the above two points on which the two Hon'ble Judges have differed. I find that the judicial opinion is divided on the first point, viz., as to whether a final decree passed after the death of the defendant without making his heirs party is void or is only voidable. [60] I am, therefore, called upon to give my opinion on the above two points on which the two Hon'ble Judges have differed. I find that the judicial opinion is divided on the first point, viz., as to whether a final decree passed after the death of the defendant without making his heirs party is void or is only voidable. All the Courts are unanimous in holding that the decree passed after the death of the defendant without making his heirs parties is void unless covered by o. 22, B.-6, Civil P. C., and the difference is con­fined only to the point as to whether the final decree would be void because of the death of the defendant when the preliminary decree was passed against him when he was alive. [61] The Calcutta view is relying mainly on the decision of the Privy Council in " Lachmi Narain v. Balmakund, 51 ind. App. 321, that such a decree was voidable and not void and that is the view that has been accepted by the Hon'ble the Chief Justice. But, on the other hand, Earn Labhaya J. has relied on the Patna F. B. case reported in Jangli Lall v. Laddu Bam, A. I. R. (6) 1919 Pat. 430 that the decree in such a case is not only voidable but absolutely void and this view is sought to be supported by the case reported in Radha Prasad v. Lai Sahab Rai, 17 Ind. App. 150 (P.O.) where it was held that "an operative decree obtained after, the death of a defendant by which the extent and quality of his liabi­lity, already declared in general terms, are for the first time ascertained, cannot bind the representatives of the deceased, unless they were made parties to the suit in which it was pronounced. " [62] In my view also, following the Privy Council case reported in Radha Prasad v. Lai Sahab Rai, 17 Ind. App. 150 P. C. and other judi­cial pronouncements,-the final decree obtained after the death of the defendant when a preliminary decree was obtained against the defendant when he was alive is not binding upon the heirs of the defendant unless they were made parties at the time when the decree was pronounced. [63] But this is a matter which the executing Court cannot go into. [63] But this is a matter which the executing Court cannot go into. I hold in agreement with the view expressed by the Allahabad High Court in " Mahabir Singh v. Narain Tewari, A. I. R. [18) 1931 ALL. 490 (P. B.) that whether the decree is effective or not due to the death of the defendant is not a matter which the executing Court can decide,-the dispute involved not being with­in the scope of S. 47, Civil P. C., whether it be the executing Court which passed the decree or a transferee Court as in this case. - [64] It has been held therein as follows: "The question as to whether the decree Is a nullity or not is not a question relating to execution or satisfac­tion of the decree. It goes to the very root of the decree and is a matter which the executing Court cannot decide, the dispute Involved not being within the scope of S. 47." [65] I must, therefore, uphold the second con­tention of the appellant, that is, regarding the competence of the executing Court to go into the validity of the decree in agreement with the Hon'ble the Chief Justice and direct that the matter should go to the executing Court and the objection to the execution on the ground that the final decree was void as passed in the absence of the original defendant should be held to be non. maintainable in the execution proceeding. Any decision on the first point namely as to the decree is void or voidable is not, therefore, essential but I quote with approval the following lines from the judgment of Sulaiman Ag., C. J. in Allahabad F. B. case reported in Mahabir Singh v. Narain Tewari, A. I. R. (18) 1931 ALL. 490 at p. 496: '' It has been held in numerous cases that where the. decree is sought to be challenged on the ground of its| invalidity,-the proper remedy is by a separate suit. " [66] I express no opinion as to whether the execution proceeding is liable to be struck off for non service of notice as contemplated under 0. decree is sought to be challenged on the ground of its| invalidity,-the proper remedy is by a separate suit. " [66] I express no opinion as to whether the execution proceeding is liable to be struck off for non service of notice as contemplated under 0. 21, B. 15, Civil P. C., as that point was not taken before the Division Bench when the appeal was first argued and my decision must be limited as I have already stated only to the points of difference between the two presiding Judges of this Court. The judgment-debtors if they so choose, will be eligible to raise this objection in the Court below. With these observations I allow the appeal and direct in accordance with the majority opinion of the Judges hearing this appeal that the matter be sent down to the executing Court for disposal according to law. The appeal is allowed with no order as to costs. Appeal allowed.