Abdul Hakim Vs. Goleda Begum and others, 36 DLR (AD) (1984) 5

Case No: Civil Appeal No. 144 of 1982

Judge: Shahabuddin Ahmed ,

Court: Appellate Division ,,

Advocate: Dr. Rafiqur Rahman,Mr. S.M. Abdur Rouf,,

Citation: 36 DLR (AD) (1984) 5

Case Year: 1984

Appellant: Abdul Hakim

Respondent: Goleda Begum and others

Subject: Jurisdiction of a Court,

Delivery Date: 1983-6-2

 
Supreme Court
Appellate Division
(Civil)
 
Present:
FKMA Munim CJ
Badrul Haider Chowdhury J 
Shahabuddin Ahmed J   
Chowdhury ATM Masud J 
Syed Md. Mohsen Ali J
 
Abdul Hakim
...........................………...Appellant
Vs.
Goleda Begum and others
………..............................Respondents
 
Judgment
June 2, 1983
 
The Code of Civil Procedure, 1908
Section 47
An executing Court becomes functus-officio after execution of the decree by making delivery of possession of land and the Court has no jurisdiction to reopen the proceeding. However, the executing Court has got power to correct any accidental slip or a clerical mistake. To go into the matter concerning its merit is beyond the jurisdiction of the executing court once it has executed the decree. Section 47 will apply so long the decree remains unexecuted………….(11) 
 
Cases Referred to-
Abbasuddin Chowdhury Vs Chandra Mohan Chowdhury, (1966) 18 DLR 535; Laxmi Narayan Marwary Vs Bal Mukunda; AIR 1924 PC 198; Perumal Pillai Vs Perumal Chetty, AIR 1928 Mad 914 (FB) ; Subbarayadu Vs Ramadsu, AIR 1923 Mad 237; Mt. Bhatia Vs Abdus Shakur, AIR 1931 Pat 57; Priya Bala Vs Sarajo Bala, AIR 1936 Cal. 540; Fakrun Vs. Ayachuddin, IBCR (1981) 236; Ainuddin Bepari Vs Banessa Bibi, (1968) 20 DLR 1050; Emad Ali Vs Jagan Lal, 17 ILR All. 78; Nil Ratan Vs Ram Ratan, 5 CWN 627; Bashiruddin Vs Elahi Baksha, AIR 1935 Cal. 644; Kartar Singh Vs Zorawar Singh, AIR 1 29 Lal 121; Bijoy Krishna Vs Mantazuddin (1969) 21 DLR 631.
 
Lawyers Involved:
Rafiqur Rahman, Senior Advocate, instructed by Serajur Rahman, Advocate-on-Record-For the Appellant.
M. A. Rouf, Advocate, Instructed by Md. Aftab Hossain, Advocate-on-Record—For the Respondents.

Civil Appeal No. 144 of 1982.
(From the judgment and order dated 25th May, 1982 passed by the High Court Division in Civil Revision No. 385 of 1980)
 
JUDGMENT
 
Shahabuddin Ahmed J.
 
This is an appeal by special leave at the instance of the plain­tiff-decree holder of a partition suit. A per­tinent question of law, which is also of considerable public importance, is involved herein. It is whether an execution procee­ding can be reopened on an application under section 47 of the Civil Procedure Code long after the decree has been execu­ted and possession of the land has been delivered to the decree-holder.
 
2. This arises from partition suit No. 57 of 1962 filed by the appellant in the 1st Court of Munsif, Mymensingh, against the respondents and many other defendants. Details of the suit which proceeded in a zigzag way need not be given. The suit was decreed in a preliminary form on 16 February 1974 by the lower Appellate Court upon setting aside the judgment of the trial Court dated 23 December, 1968. Final decree was passed on 15 July, 1976, whereupon the Execution Case No. 6 of 1976 was filed which was allowed and possession of the plaintiff's share was delivered through Court on 2 June, 1977. The respondents (Judgment-debtors) filed Misc. Case No. 51 of 1977 under section 47 C.P.C. on 26 December 1977 raising objection to the execu­tion already completed taking the ground that the decree was a nullity as five defendants, judgment-debtors, had died "before the final decree and the execution proceeding" but their legal representatives were not brought on record. The application was contested by the decree holder taking the ground that the Executing Court became functus officio after executing the decree and putting him into possession and as such the court got no further jurisdiction to entertain any objection as to execution, discharge or satisfaction of the decree. The Executing Court dismissed the Miscellaneous Case, holding, among other things, that the alleged death of the defendants was not proved by producing any authentic and reliable evidence, such as Death Certificates. The lower Appellate Court, however, allowed the application holding that some defendants died before the decree but their heirs not having been substituted, the decree was a nullity; the learned Single Judge of the High Court Division did not interfere with the lower Appellate Court's order on a re visional application.
 
3. Mr. Rafiqur Rahman, Learned Advocate for the appellant has contended that the learn­ed Single Judge of the High Court Division fell into serious error of Law in allowing the respondents' application under section 47 filed long after the decree was executed, ignor­ing the established principle of law that the Executing Court becomes functus officio after the decree has been executed. The learned Advocate further contends that the learned Single Judge ignored the express provision of rule 12 of Order XXII, Civil Procedure Code, which say that the provisions as to substitution under rules 3 and 4 are not applicable to a proceeding in execution of a decree or order. Similarly, he has further contended, the learned Single Judge fell into an error of law in holding that a final decree becomes void on the death of either party thereto. The learned Advocate has, in sup­port of his contention, referred to a great number of decisions which will be discussed presently.
 
4. Md. Abdur Rouf, learned Advocate for the respondents, has, on the other hand, contended that since the executability of a decree is a question relating to execution of a decree within the meaning of section 47, this question can be gone into by an applica­tion even after the decree has been executed simply because, for determining such a ques­tion no other forum has been provided in law particularly when no suit shall lie for this purpose. He has argued that in this case the objection under section 47 is not limited to the question of 'substitution' during the execution proceeding, but it relates to the question of the decree becoming a nullity having been passed against dead persons, some dying after preliminary decree and some even before it. The learned Advocate has also referred to a number of decisions in support of his contention.
 
5. There is no dispute that the question of death of any of the defendants of the suit or of their substitution was not raised until after the decree was put into execution and possession of the land was delivered to the decree-holder. This question was raised in the application under section 47, filed about 7 months after the execution of the decree by final disposal of the execution proceeding. This application says that five judgment debtors including judgment-debtor No. 32 had died before the final decree and the execution case", but their heirs were not brought on record by substitution. So far as during the pendency of the execution proceeding is concerned, law is against the respondents judgment-debtors. Rule 12 of Order XXII provides that the provision as to substitution shall not apply to an execu­tion proceedings. It, therefore, naturally follows that if any judgment-debtor had died during the execution proceedings, namely, Execution case No. 6 of 1976. no damage was done to the decree or its execution, On a similar question a Division Bench of the then High Court also held, in the case of Abbasuddin Chowdhury V. Chandra Mohan Chowdhury, 18 DLR 535, that an execution proceeding would not abate on the judgment debtor's death during the proceeding. Simil­arly, if these judgment-debtors as referred to in this case, had died after the preliminary decree but before the final decree was passed, non-substitution of their heirs did not cause any damage to the decree or its execution. The reason for this principle of law is very simple; it is that the rights of parties to the suit have been conclusively determined in the preliminary decree and what has been left for the final decree is the execution of the consequential work, such as, demarcation of different sahams in a partition suit, or ascertainment of mesne profit it in a suit for the recovery of such profits. Opinions were however divided on the question, whether on the death of a party occurring after the pre­liminary decree but before the final decree, the decree would be a nullity. The question has been finally decided by the Privy Council in the case of Laxmi Narayan Marwary Vs. Bal Mukunda Marwary, AIR 1924, PC 198. In that case, a consent decree was passed by the High Court on appeal, in a suit for partition, and thereafter it was remanded to the trial Court for taking necessary steps for affecting the partition in terms of the consent decree. But the trial Court, on a date fixed for hear­ing, found the plaintiff absent, whereupon the trial Court dismissed the suit "for want of further prosecution". The Privy Council to which the matter ultimately went, held this order of dismissal to be "unfortunate", and further held that after a decree has been passed the suit cannot be dismissed either for default or for death of any of the parties thereto unless the decree has been set aside by a superior Court. It has been observed by their Lordships:
 
"After the decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabili­ties which are fixed, unless or until the decree is varied or set aside”. 
 
6. This authoritative decision of the Privy Council has been followed by all courts of the sub-continent since then without any excep­tion. The principle of law laid down there is that so far as the rights and liabilities of parties to a suit are concerned, they are con­clusively determined by the preliminary decree, whereas the final decree is limited to the question of working out in detail the prelimi­nary decree. From this it necessarily follows that death of a party to a preliminary decree, occurring thereafter, but before the final decree, shall not set at naught the decree. The pro­vision as to substitution under rules 3, 4 or 8 of Order XXII will not therefore apply in such a case.
 
7. In the case of Perumal Pillai Vs Perumal Chetty, AIR 1928 Mad. 914, a Full Bench considered the question of substitution of a party to a preliminary decree and ans­wered the question in the light of the Privy Council decision as referred to above. The learned Judge observed, ''Order XXII, rules 3 and 4 did not apply to cases of death after the passing of preliminary decree". The question arose in a Mortgage suit in which a preliminary decree was passed after which the plaintiff died, but his heirs were not substitu­ted. Nevertheless, the heirs proceeded to execute the decree. It was resisted by the judgment-debtor whose contention was that the suit had abated 3 months, after the plaintiff's death. There was a previous ruling of that Court on a similar question in another case, Subbaraydu Vs Ramadasu, AIR 1923 Mad, 237 where it was held that the substi­tution was necessary if a party died in between the preliminary decree and the final decree. The reason for substitution as given in that case was that even after the preliminary decree is passed the suit continues and that until the final decree is passed the proceedings of the suit remain pending. The learned Judges of the Full Bench, however, held that though a suit continues and proceedings remain pending till the final decree is passed, yet it so continues and remains pending only for a limited purpose, such as, in the case of mesne profit, to ascertain the amount in terms of the preliminary decree, and that the rights or liabilities of the parties have already been determined by the preliminary decree before his death, and as such, death occurring thereafter cannot affect the decree; his heirs therefore will be bound by the decree even if they were not brought on record. The decision in the case of Subbaraydu was therefore overruled and that of the Privy Council was followed by the Full Bench.
 
8. In Mt. Bhatia Vs Abdus Shakur, AIR 1931 Pat. 57, this principle was followed and it was observed that "Order 22, rules 3 and 4 do not apply to case of death of parties after the passing of the preliminary decree and that the words "light to sue" and the "right of action" are determined by the preliminary decree". It was further ob­served that "no question of abatement arises in such a case even though one of the parties died after the preliminary decree is passed and no representative is brought on record". In Priya Bala Dasi Vs Sarajo Bala Choudhurani, A.I.R. 1936 Cal 540, it has been held that on the death of some plaintiffs after the preliminary decree for ascertainment of mesne-profits the suit does not abate by reason of the non-substitution of the deceased plain­tiff's legal representatives. In a recent case, also Fakrun Vs Ayachuddin, 1 B.C.R. 1981, 236, the same view has been held by the High Court Division.
 
9. In the instant case, no distinction has been made between a preliminary and a final decree but both have been taken as 'decree' which, held by the learned Single Judge, becomes a nullity if passed against a dead person. The application under section 47, namely Misc. Case No. 51 of 1977, speaks of some deaths occurring "before the final decree and the execution proceeding" indicating that these deaths occurred after the preli­minary decree. If so, these deaths did not affect the decree which has" been executed in due course. Mr. Abdur Rouf, relying upon the decision in the case of Ainuddin Bepari Vs Banessa Bibi, 20 DLR 1050, argues that a decree against a dead person being void is not executable and as such the executing court must refuse execution on an application under section 47 It is not disputed that the Execu­ting Court may refuse execution of a decree if it is found to have been passed against a dead person; but such decree means 'pre­liminary decree' and not 'final decree'. The decision relied upon is therefore not helpful to the learned Advocate in the face of the application of the respondent showing deaths occurred after the preliminary decree.
 
10. Mr. Abdur Rouf has argued that of the five deceased judgment-debtors referred to in the application, at least one had died before the preliminary decree, and as such, in his case the preliminary decree is a nullity for want of substitution. It appears that as the proceeding of the Misc-case were going on, improvement thereupon was sought to be made and the said judgment debtor was traced out to be "defendant No. 22'' of the suit. The son of deceased defendant No. 22 was brought as a witness who claimed that his father had died many years ago, such as eight or nine years. The trial Court hesitated to place reliance upon his oral evidence, particularly in the absence of any death certificate: but the lower Appellate Court accepted his evidence as true overlook­ing that this point was not taken by the respondents in their application. It should be noted that not only the application for execution of the decree went unchallenged on question of substitution, but also no dispute was raised either as to the preliminary decree of the final decree and that it is about two years after the execution of the decree that the son of defendant No. 22 was produced in Court to give evidence that his father had died some 8 or 9 years ago. If date of death of a defendant is accepted without authentic evidence or documents, execution proceedings may be sought to be reopened long after execution of the decree. That is why the question of finality of a proceeding or to the Court itself becoming functus officio assumes great importance.
 
11. Md. Abdur Rouf does not agree to the proposition that the Executing Court becomes functus officio after execution of a decree, but argues that it may be re­opened under section 47 on the ground that the question of excitability of a decree falls within the scope of this section. He has referred to the cases of Emad Ali Vs Jagan Lal, 17 ILR All. 78; Nil Raten  Khash Nabish Vs Ram Ratan Challaskar, 5 CWN 627, and Basiruddin Sarkar Vs Elahi Bux Pramanik, AIR 1935 Cal. 645. Mr. Rafiqur Rahman, on the other hand, has placed reliance upon the cases of Kartar Singh V Zorawar Singh, AIR 1929 Lah 121; Firm Wastiram Gurditamal Vs Mt. Ganeshi AIR 1939 Lah and Bijoy Krishna Paik V. Montajaddi Sheikh, 12 DLR 631 in support of his contention that the Executing Court becomes functus officio after execution of a decree and cannot re-open it under section 47 on any ground whatsoever. The decision reported in 17 ILR as referred to above, was given in a suit for possession of a land. After execution of the decree and possession was delivered an heir of one of the defendants who died before decree was passed, filed an application under section 244 of the old Civil Procedure Code, corresponding to the present section 47, for an order that the decree was incapable of execution. This application was allowed on the ground that the dispute aris­ing between the parties is contemplated by that section and relates to the execution of the decree. But the questions of the Court becoming functus officio and of the principle of finality of litigation are not found to have been raised or considered in that case. In the case of Nil Ratan Khas Nabish, 5 CWN, as referred to above, an execution proceeding was re-opened after the execution of the decree to correct an arithmetical mistake in calcula­ting the decretal amount though both parties had earlier made a submission that the decree had been satisfied. In the case of Basiruddin Sarkar, (AIR 1935 Cal.) as referred to by Mr. Rouf, it has been held that "on a proper case being made out an execution proceeding may be re-opened after recording that the decree was satisfied". In that case, on an application by the decree-bolder himself that his claim had been satisfied, the Court recorded  an order to this effect, but thereafter the decree-holder filed an application stating that his earlier statement as to satisfaction of the decree had been obtained by "coercion and fraudulent misrepresentation" by the judgment-debtor. On the other hand, in the Lahore case as referred to by Mr. Rafiqur Rahman (AIR 1929 Lah. 121), a decree was fully satisfied and the execution proceeding having been finally disposed of its records were sent to the record room. There­after an application was filed by the judgment-debtor for correction of description of the property and also for restitution of the property sold 'in excess' in execution of the decree. In that case the decree-holder's contention that the Court became functus officio and got no further jurisdiction to re-open the question, as to execution was accepted by the Court who made the following observation: 
 
"When a particular decree is consigned in record-room after it is fully satisfied, an application by a judgment-debtor for correction of description of property sold in execution of the decree and restitu­tion of property from auction-purchaser sold in excess is not maintainable as the Executing Court is functus officio. The application is not one relating to execu­tion, discharge or satisfaction of the decree". 
 
In the case reported in 12 DLR 631, a pro­perty was sold in execution of a decree and the purchaser was put into possession of a land. Thereafter an application under section 47 was filed for setting aside the sale taking the ground that the property had been acquired by the Government before the sale took place. The application was rejected on the ground that after confirmation of the sale the executing Court became functus officio and as such section 47 would not be applicable for the purpose of re-opening the case. The same view was expressed in the case “Firm Wasti Ram Gurditta Mal Vs Mt. Guneshi” AIR 1939 Lah. 405 and it was further held that after confirmation of the sale id execution of the decree, no objection under section 47 is maintainable. It may be mentioned here that the learned Single Judge of the High Court Division in the instant case has observed that "there is unanimity of decision of the Courts of sub-continent that a dispute relating to an execution can be reopened even after the decree has been executed". This observation is not supported by recorded facts.
 
12. On consideration of these two sets of views, we are inclined to the view that an executing Court becomes functus officio after execution of the decree by making delivery of possession of land, as in the instant case, and that the court has no jurisdiction to re-open the proceeding. Of course, the executing Court has got power to correct any accidental slip or a clerical mistake. This is not re-opening of the proceeding in execution. This remedy is always available by way of review under Order 47, Civil P.C. To go into the matter concerning its merit is beyond the jurisdiction of the execut­ing Court once it has executed the decree. The question, whether a decree is void ab initio having been passed against a dead person, may be raised in a proceeding in execution since it is a question relating to execution of the decree; but this question can not be raised after the decree has been executed. Section 47 will apply so long the decree remains unexecuted. After execution of the decree, this section will not apply, and consequently, there will be no longer any bar to the filing of a suit for a declaration of nullity of the decree on the ground   of its having been passed against a dead person.
 
In the result, the appeal is allowed without any costs. The judgment of the High Court Division is set aside and that of the trial Court is restored.
 
Ed.