Das Gupta, J.:— It is possible, in these cases, to sympathise with the decree-holder but we find it impossible to give him any relief. The suit was brought by Shiva Prosad, son of Gokul Chand Vaish Agarwal as karta of a Hindu joint family carrying on business under the name and style of Shiva Prosad Darshanlal at Dehra Dun. When the suit was pending Shiva Pro-sad died. This was on the 14th March, 1949. Shortly thereafter, on the 1st of April, 1949, an application was made by Darshanlal Agarwalla for substitution in place of Shiva Prosad claiming to have become the karta of the joint family on the death of Shiva Prosad. Before, however, any order granting this prayer for substitution was made, a petition of compromise appears to have been filed before the court purporting to have been filed by Darshanlal as the plaintiff and by the defendants. The compromise was recorded and a decree was passed in terms of the compromise. The decree provided for payment by instalments. Some instalments were paid, but all this time, nobody seems to have discovered that the order for substitution had not been made. On the 3rd May, 1952, Darshanlal made an application to the court stating that no order has been made on his application for substitution made on the 1st April, 1949 and that his name might be substituted in place of Shiva Prosad and the decree might be suitably amended. On the 2nd August, 1952, the learn. Judge of Dehra Dun made an order instituting the name of Lala Darsh lal in place of Shiva Prasad. It appears that this order was made in the absence of the defendants. On the order for substitution being made, the decree as originally made by the court was amended by substituting the name of Darshanlal in place of Shiva Prosad. Two attempts at execution appear to have been made thereafter before the application out of which the present appeals have arisen was made. No steps appear to have been taken in those cases and apparently nothing happened therein except that the decree was transferred to the court of the Subordinate Judge, Darjeeling, for execution. On the present occasion, after an application for execution had been made before the Subordinate Judge of Darjeeling and notices were issued, two objections were raised on behalf of the judgment debtors under section 47 of the Civil Procedure Code on the ground that the decree sought to be executed was a nullity. The learned Subordinate Judge accepted this contention and allowed the objections. It is against this decision that the present appeals have been filed.
2. On behalf of the appellant, Mr. Das Gupta has raised two points.
3. The first is that whatever might be said of the decree as originally passed, the decree as amended should not be considered to be a nullity. His second point was that in any case the decree in favour of the dead person Shiva Prosad would remain valid in law until and unless the opposite parties had taken proper steps to get rid of the same.
4. Neither of these points had, in my opinion, any substance. If a decree is passed without jurisdiction, a later order amending it, canont remove that lack of jurisdiction and what was a nullity before the amendment does not become a valid thing after the amendment. The real question therefore, is whether even before the amendment was made, the decree was a valid decree or a nullity. Mr. Das Gupta has placed before U9 the decision in the case of Noni Chowkidar v. The Official Trustee of Bengal, (1) 49 C.L.J 483, in support of his contention that notwithstanding the death of Shiva Pro-sad, the decree remains valid, subject to its being vacated at the instance of the legal representatives of the person who had died. I do not consider it necessary in the present case to examine the circumstances under which a decree passed in favour of a dead person is a valid decree. In the present case, the decree was a decree of compromise. We shall be missing the essence of the matter if we consider it merely as a decree passed in favour of a dead man. In essence the decree was not in favour of Shiva Prosad but in favour of the joint family, as represented by Shiva Prosad. When Shiva Prosad died, there was nobody before the court to represent the joint family. It may be that an application for substitution having been made in proper time, the suit would not abate and even years later the court might pass an order granting the substitution and then deal with and decree or dismiss the suit. Before, however, the court could have any jurisdiction to decree the suit in terms of a compromise, it was necessary, in law, that there must be somebody representing the plaintiff before the court. There was none. It is true that at a later date this very person Darshanlal who signed the petition of compromise, was considered by the court to be a proper person to re present the joint family as its karta in place of the former karta Shiva Prosad. That does not alter the fact that on the date the compromise petition was filed and on the date the court recorded it and passed a decree in terms of the same, Darshanlal was not before the court representing the joint family as its karta. In the absence of anybody representing the plaintiff, the court had, in my opinion, no jurisdiction to pass any decree in the suit, and the decree that was passed must be held to be a nullity. As already stated, the amendment could not and did not, in my opinion, remove that nullity.
5. The executing court has, there fore, in my opinion, rightly refused to execute the decree and rightly allowed the objections under section 47 of the Civil Procedure Code.
6. I would, therefore, dismiss these appeals with costs.
Law, J.:— I agree.
S.N.S