J.C Shah, J.:— The following genealogy shows the relationship between plaintiffs Nos. 1 to 5 and original defendants Nos. 10 to 15 who were, subsequently transposed as plaintiffs Nos. 6 to 11.

2. The dispute in this litigation relates to R.S No. 48 of Ekundi which belonged to Jivaji who is shown as the common ancestor in the genealogy. Jivaji mortgaged the land with possession with Bhiwa Bayaji Patil on June 4, 1873, for Rs. 100. Suit No. 522 of 1930 was filed for redemption of the mortgage by the descendants of Jivaji in the Senior Jahagir-Munsiff's Court at Kagal in the former Kolhapur State. On November 25, 1933, a decree for possession was passed, and in Darkhast No. 434 of 1933 possession of the mortgaged land was obtained by the mortgagors. Thereafter Raghu son of Bhiwa fled appeal No. 57 of 1934 in the District Court at Kolhapur and the decree passed was confirmed in appeal on September 1, 1936. Raghu then filed Second Appeal No. 70 of 1936. It is stated that Raghu died on September 10, 1939, during the pendency of the appeal and the appeal was heard on September 18, 1939, without bringing his heirs on the record. The appeal was decided in favour of Raghu and the suit filed by the plaintiffs was ordered to be dismissed. The heirs and legal representatives of Raghu then filed Darkhast No. 165 of 1941 to execute the decree. It was stated in that application that Raghu died some time after the High Court of Kolhapur decided Second Appeal No. 70 of 1936 and that the applicants were entitled to execute the decree. It appears that no objection was raised by the plaintiffs in the execution proceeding that the decree under execution was a nullity, and defendant No. 1 Dadu Raghu Patil obtained possession on August 29, 1943. The plaintiffs then filed on April 21, 1951, Civil Suit No. 46 of 1951 against the heirs and legal representatives of Raghu and others for a decree for possession of the suit land from the defendants and for future mesne profits and costs of the suit. They claimed that they were illiterate and came to know of the death of Raghu ‘recently’ and that defendant No. 1 and his sons, defendants Nos. 2 and 3, were co-sharers and accordingly they were impleaded as party-defendants.

3. The suit was resisted by defendant No. 1 contending inter alia that his ancestors had become owners of the suit property by virtue of the decree passed in Second Appeal No. 70 of 1936, that it was untrue that Raghu died on September 11, 1939, that in any event the decree passed in Second Appal No. 70 of 1936 was ‘legal and valid,’ that after the decree was passed by the High Court an application was filed for leave to appeal to the Supreme Court of the Kolhapur State and therein affidavits were made that Raghu died after the decree in Second Appeal No. 70 of 1936 was passed and that the defendants had filed Darkhast No. 165 of 1941 and under an order passed in the execution proceeding possession was delivered on August 29, 1943, after hearing both the parties, and so long as that decision was not set aside, the suit filed by the plaintiffs was not maintainable. Defendant No. 1 also contended that the suit was barred by the rule of res judicata and under s. 47 of the Civil Procedure Code and also by the law of limitation. The learned trial Judge on these pleadings raised the relevant issues and held that the decree in Second Appeal No. 70 of 1936 was a nullity, that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud and the proceeding was illegal and a nullity and that the plaintiffs' contentions were not barred as res judicata. He held that the suit was within limitation and the plaintiffs were entitled to a decree for possession. Accordingly the learned Judge passed a decree in favour of the plaintiffs for possession of the suit land from defendants Nos. 1 to 9 and directed an inquiry into future mesne profits under O. XX, r. 12(1)(c), of the Civil Procedure Code. Against that decree this appeal has been preferred by defendants Nos. 1 and 3 to 9.

4. After the appeal was filed plaintiff No. 2 Sakharam Ranaba Dhere died and an application was made for bringing his heirs on the record, but that application was dismissed by this Court. The appeal, in so far as plaintiff No. 2 Sakharam is concerned, must, therefore, abate. It was urged that there was a joint right vested in all the plaintiffs and if the appeal abates quae plaintiff No. 2, the entire appeal must abate. But this Court in a large number of cases has held that where in a suit for possession by several plaintiffs a decree is passed and before the appeal is decided one of them dies, the abatement is quae the share of that plaintiff and not in its entirety (see e.g Shankerbhai Manorbhai v. Motilal Bam das . 1925 49 Bom. 118, S.C 26 Bom. L.R 1217. and Chandarsang v. Khimabhai . 1898 I.L.R 22 Bom. 718.). It cannot, therefore, be held that the appeal abates in its entirety.

5. Second Appeal No. 70 of 1936 in the Kolhapur High Court was heard on September 18, 1939, and the judgment was delivered by the Court on October 5, 1939. It is the case of the plaintiffs that Raghu, the appellant in Second Appeal No. 70 of 1936, died on September 11, 1939, and the decree being in favour of a dead person was a nullity. But, in our judgment, the question whether Raghu died before September 18, 1939, when the second appeal was heard and on that account the decree is a nullity, cannot be permitted to be raised in this suit. As we have already observed, in Darkhast No. 165 of 1941 an application was filed by the heirs and legal representatives of Raghu to enforce the claim for restitution on the plea that Raghu died after the decree was passed by the Kolhapur High Court in Second Appeal No. 70 of 1936. The plaintiffs in this suit were served with notice of the darkhast and they did not contend that Raghu died before the date of the decree of the Kolhapur High Court and that the decree was a nullity. From the averments made in the plaint it appears that the plaintiffs were heard on the objections sought to be raised by them. The executing Court having passed an order for delivery of possession in favour of the heirs and legal representatives of Raghu, we are of the view that in a separate suit the validity of the order cannot be challenged. The infirmity if any to which the order passed by the executing Court was subject had to be rectified by an appeal from that order and not by a suit. Accordingly, in our judgment, the suit filed by the plaintiffs was not maintainable.

6. The learned Judge in the Court below has recorded an affirmative finding on the issue whether the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud. But neither party has led any evidence on the plea of fraud, and not even the particulars of fraud have been furnished. It is difficult to sustain the finding of the learned trial Judge that the proceedings in Darkhast No. 165 of 1941 were vitiated by fraud.

7. It was contended by Mr. Paranjpe, who appears on behalf of the plaintiffs-respondents, that the question whether the decree sought to be enforced is a nullity could not be raised in the execution proceeding. Mr. Paranjpe invited our attention to decisions of the Nagpur and Madras High Courts in support of the contention that an objection whether a decree sought to be enforced is a nullity cannot be raised in execution and the objection can be raised only in a separate suit. It is unnecessary for us to enter upon a detailed examination of the authorities relied upon, because so far as this Court is concerned the question has been decided by a Division Bench of this Court. In Shivaji v. Vithal, Sir Amberson Marten, C.J and Mr. Justice Percival held (p. 1367):

“Where a defendant dies before the hearing of the suit against him is concluded and a decree is passed against him, without his legal representative being brought on record, the decree is a nullity and cannot be executed against the legal representative. An objection of this nature can be taken in execution proceedings, and it is not necessary to bring a separate suit.”

8. Mr. Paranjpe says that even though this Court has taken the view that the objection to the executability of the decree can be raised in execution proceedings relying upon the authority of Shivaji's case, a party affected by the decree is not bound to raise the objection, and if he does not raise the objection, he is, notwithstanding the order passed in the execution proceeding, entitled to raise that objection in a suit, and, therefore, says Mr. Paranjpe, the suit filed by the plaintiffs in this case was in law maintainable. Now, a Court executing a decree is entitled to try all questions relating to execution, discharge or satisfaction of a decree: and according to the decision in Shivaji's case an objection that the decree under execution is a nullity and incapable of execution is one which can be raised in execution proceedings. It follows that the objection is one relating to execution of a decree, and if it is of that nature, in our judgment, it must be raised in execution and cannot be permitted after the decree is executed to be raised in a separate suit. In delivering the principal judgment of the Court, Marten, C.J, observed (p. 1368):

“…The question here is whether the decree was a nullity, being a decree against a dead man. Accordingly, in Sripat Naraein Rai v. Tirbeni Misra, 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.

In this respect we have been referred to s. 47 of the Civil Procedure Code, and to the notes in Mr. Mulla's text book on that Act at p. 124, where the learned author states: ‘Having regard to the decisions that questions relating to the validity of a decree cannot be tried in execution proceedings, but must be decided in a regular suit, the procedure by suit would appear to be the proper one.’ But here, as I have already said, it is a question of the decree being a nullity.”

9. It is evident from the observations made by Chief Justice Marten that the question whether a decree sought to be executed was a nullity could be raised in execution proceedings and was one relating to execution and, therefore, under s. 47 of the Civil Procedure Code the executing Court was bound to try that question and the parties could not agitate the same in a separate suit. In our judgment, Shivaji's case is a complete answer to the argument advanced by Mr. Paranjpe, and we do not think it necessary to discuss the other authorities to which our attention was invited, e.g, Sethurajan v. Gurnswami Pathar and Mangal Prasad v. Teklal . [1946] A.I.R Nag. 275.. It may be sufficient to observe, however, that these cases were not cases where it was pleaded that there was abatement of the appeal by the death of the original decree-holder.

10. Strong reliance was sought to be placed by Mr. Paranjpe upon a judgment of their Lordships of the Privy Council in Rashid-Un-Nisa v. Muhammad Ismail Khan . 1909 L.R 36 I.A 168, S.C 11 Bom. L.R 1225.. It was contended, relying upon that judgment, that even if a decree has been executed, it is open to a party affected by the execution to file a separate suit that the decree is a nullity and to obtain relief on that footing. Now, Rashid-un-Nisa's case was a case on very special facts. Their Lordships held that in a case where a minor was not represented either in the suit or in the execution proceeding consequent upon the decree, and execution was levied against the property of the minor, the minor in a suit filed for a declaration that the decree and the sales in execution proceedings affecting her share in her father's estate were invalid, was entitled to a decree that the decree and the sale proceedings were invalid. The principle of that case can, in our judgment, have no application to the facts of the present case, because the plaintiffs in the suit in this case were before the Court in the execution proceedings and in their presence the executing Court directed restitution and that restitution can only be directed on the view that there was a valid and enforceable decree passed by the High Court in Second Appeal No. 70 of 1936. After the Court orders execution on the view that there is an executable decree, in our judgment, by the operation of the rule of res judicata any further investigation into the validity of that decree cannot be permitted to be raised in an independent suit. We are, therefore, unable to agree with the view of the learned trial Judge that the suit filed by the plaintiffs was maintainable.

11. Mr. Kotwal, who appears on behalf of the defendants, contends that even though an application for bringing the heirs and legal representatives of plaintiff No. 2 has been dismissed and the appeal quae plaintiff No. 2 has abated, in exercise of the powers of this Court under s. 151 read with O. XLI, r. 20, of the Civil Procedure Code, the heirs of plaintiff No. 2 may be permitted to be brought on the record: and in support of that contention our attention was invited to two decisions of this Court. In Lakhmichand Rewachand v. Kachubhai Gubabchand . 1911 I.L.R 35 Bom. 393, S.C 13 Bom. L.R 517., a partition suit had abated because of the death of the plaintiff. Thereafter the son of the plaintiff applied more than 16 years after the date of the death of the original plaintiff for the issue of a commission to effect partition according to the rights declared by the partition decree. The Court held that the suit had abated as regards the applicant's father and the application for setting aside the abatement by adding the applicant as the legal representative was barred by the law of limitation. The Court also held that in a suit for partition all the parties should be before the Court, and there being nothing in the Civil Procedure Code limiting or affecting the inherent power of the Court to make such orders as might be necessary for the ends of justice, the application should be granted. It has, however, to be noted that in that case a preliminary decree was passed before the death of the plaintiff, and no further proceedings were taken under the decree. A suit cannot abate after the rights and obligations of the parties have merged in the decree of a Court. If a party after the passing of the preliminary decree in a partition suit dies, the proceedings may have to be kept undisposed of sine die and in such a case the Court has inherent jurisdiction in a proper case to restore the proceedings and to dispose of the same after working out the rights of the parties under the preliminary decree and according to law. This case can have no application to the present case.

12. The other case relied upon was Shankerbhai Manorbhai v. Motilal Ramdas. In that case the surviving plaintiffs had sued to recover possession of a house site from the defendants. Plaintiff No. 2 died during the pendency of the suit and his widow was joined as his legal representative. A decree was then passed in favour of the surviving plaintiffs and the heirs and legal representatives of plaintiff No. 2. The defendants then appealed against that decree to the District Court, and during the pendency of the appeal, the heir of the original plaintiff No. 2 died Nearly 16 months after the date on which the heir of plaintiff No. 2 died, it was brought to the notice of the Court that plaintiff No. 1 was the heir and legal representative of the deceased person and it was prayed that the appeal should proceed to a hearing. That application was disallowed and it was held by the District Court that the appeal had abated qua the heir of plaintiff No. 2. It was further held that the shares of the co-owners were not ascertained and the appeal had, therefore, abated as a whole. This Court in second appeal held that the appeal had abated as against the deceased plaintiff only and the appeal could proceed against the original plaintiff No. 1. It was urged that the inherent powers of an appellate Court could be exercised to implead the heirs and legal representatives of the heir of the original plaintiff No. 2. This Court observed that it was not proper in the circumstances of the case to make any order in exercise of the inherent powers. This observation does not support the contention that the Court is invested with any inherent powers to implead the heirs and legal representatives of a person who is dead and whose heirs have not been permitted to be brought on the record. The Court merely assumed that it was invested with the power, and held that in the circumstances of the case the exercise of that power was not called for.

13. In Badri Narayan v. E.I Ry. Co. it was held by a Division Bench of the Patna High Court (p. 757):

“…there is no power in a court under O. XLI, r. 20 (Civil Procedure Code, 1908), to revive a dead appeal or to give power to an appellant to present an appeal where there is none at all in the file of the Court.”

14. In that case, a joint decree was passed in favour of seven plaintiffs and the defendants preferred an appeal to the District Court but impleaded some only of the plaintiffs as respondents. At the hearing of the appeal it was objected on behalf of the respondents that the appeal was incompetent. But the District Judge, acting under O. XLI, r. 20, Code of Civil Procedure, added the omitted plaintiffs as respondents to the appeal and dealt with the appeal on its merits. It was held by the Patna High Court that no such powers could be exercised under O. XLI, r. 20, of the Civil Procedure Code, as the time for filing an appeal against the person omitted to be impleaded had expired.

15. In Midnapur Zamindary Co. Ltd. v. Amulya Nath Roy Chowdhury, the head-note reads as under:

“Several co-plaintiffs sued the defendants for joint possession and obtained a decree. The defendants-appellants failed to substitute in time the legal representative of one of the plaintiffs-respondents who had died during the pendency of the second appeal to the High Court. At the hearing of the second appeal the respondents took a preliminary objection that the appeal could not proceed against the other co-respondents in the absence of the dead co-respondent, or his duly substituted representative:—

Held, that the appeal abated as a whole.”

16. In that case, Mr. Justice Page opined that the heirs could not be impleaded under O. XLI, r. 20, of the Civil Procedure Code. The learned Judge observed (p. 756):

“In this case I am of opinion that the Court would not be justified in exercising its discretion under O. XLI, r. 22, in favour of the appellants for this among other sufficient reasons, that if the Court were to allow the appellants to add the representative of the deceased plaintiff as a party to the appeal the Court would be acting in a manner wholly inconsistent with its own previous order, by which the application of the appellants for the substitution of the representative of the deceased plaintiff as a respondent was rejected upon the ground that the appellants had neglected to apply for substitution within the time provided in that behalf, and had not been able to satisfy the Court that there was any sufficient ground for an extension of time being granted.”

17. If under O. XLI, r. 20, the heirs could not be substituted, much less could they be substituted in exercise of powers under s. 151 of the Civil Procedure Code.

18. We may observe that we are not in this case called upon to consider whether the estate of plaintiff No. 2 is represented in these proceedings.

19. If the heirs of plaintiff No. 2 are already on the record, his estate, may be deemed to be represented. But without deciding that question, we have directed that the name of plaintiff No. 2 who is dead be struck off from the record.

20. On the view taken by us, the appeal will be allowed and the plaintiffs' suit for possession of the suit lands dismissed with costs throughout.

21. Appeal allowed.