SHIVAJI SAYAJI GAOKAR Vs. VITHAL NARAYAN MIRASHI

JUDGEMENT

(1.) In this second appeal we think that the learned District Judge was quite right in holding that the decree passed in the original partition suit was a nullity, so far as regards Defendant No. 3 Narayan Rukhmaji Mirasi, and his representatives, on the ground that before the hearing of the suit was concluded Narayan died and his legal representatives were never put on the record. It is clear, when the record is looked at, that the trial Judge's view that the hearing had in fact been concluded prior to the death of Narayan cannot be supported.

(2.) It is, however, argued on behalf of the plaintiff that this objection cannot be taken in darkhast proceedings, but must be taken in a separate suit, and for that purpose a decision of Sir Basil Scott and Mr. Justice Batchelor in Hari Govind V/s. Narsingrao Konherrao [1914] 38 Bom. 194 is relied on. But that was a case of jurisdiction, viz., whether having regard to the Court of Wards Act, the trial Court had power to pass the particular decree which it did. It was held that this was a matter which could not be inquired into by the Court to which the decree had been sent for execution, but that under Order 21, Rule 7, the executing Court was bound to assume the validity of the decree. In particular it was pointed out that certain words referring to the jurisdiction of the Court had been excluded when passing the now Order 21, Rule 7, as compared with the provisions of the previous Code.

(3.) In the present case, the decree has not been sent to another Court for execution, nor does the point arise as to whether the Court has jurisdiction, having regard to the terms of some particular Act, to pass the particular decree that it did. The question here is whether the decree was a nullity, being a decree against a dead man. Accordingly, in Sripat Narain Rai v. Tribeni Misra [1918] 40 All. 423 , which was decided by Sir Henry Richards and Mr. Justice Banerji, it was held that an objection of that nature could be taken in darkhast proceedings.