Daulat Singh (Judgement-Debtor) v. Maharaj Raja Ramji (Decree-Holder).

Sulaiman, J.:— After the judgement of stating; the facts as above, thus continued:—

In appeal before us it is contended that the order of the first court should have been upheld and the decree held not to be binding on the appellant. There can be no doubt that the decree is not binding on the appellant. On the findings of the courts below he was a minor on the date when the decree was passed and not having been properly represented by a guardian ad litem in the suit he was not properly made a party to the decree and cannot in any way be bound by it. This position is not seriously disputed by the learned vakil for the respondent. What, however, he contends is that it is not open to the execution court to go into this question and decide the point against his client. He relies strongly on the judgement of the Calcutta High Court in Kalipada Sarkar v. Hari Mohan Dalal, where it was remarked that a proceeding to enforce a judgement is collateral to the judgement and therefore no inquiry into its validity or regularity can be permitted in such a proceeding, and the opinion was expressed that the safest course was to adhere rigidly to the established principle that every judgement and order is good until discharged or declared inoperative, and that the execution court cannot inquire into the validity or propriety of the decree. It is not clear, however, whether the learned Judges were called upon to consider the advisability of treating the proceeding in execution as a proceeding in suit.

The court of first instance purported to act under order XXXII, rule 5, but it is unnecessary for us to express a definite opinion whether that rule applies to a case where a decree has already been passed.

There is no doubt whatsoever that a separate suit for a declaration that such a decree is not binding on the minor is maintainable and in several cases their Lordships of the Privy Council have entertained such suits. We may refer to Rashid-un-nisa v. Muhammad Ismail Khan, Manohar Lal v. Jadunath Singh and Partab Singh v. Bhabuti Singh. The only question therefore is whether such a declaration can be given in these proceedings. Even under the old Code of Civil Procedure, it was held that it was open to an execution court to treat an application for execution as a plaint. Under section 47(2) of the new Code it is expressly provided that a court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional court fees. If, therefore, a declaration can be granted in a separate suit, there is nothing to prevent an execution court from treating a proceeding under section 47 as a proceeding in a suit and granting the same declaration subject to payment of any additional court fees. That this power can be exercised even by an appellate court is well, settled, and we may refer to Pasupathy Ayyar v. Kothanda Rama Ayyar, and Jotindra Mohan Tagore v. Mahommed Basir Chowdhry. If a separate suit had been instituted the only point in the suit would have been whether the defendant appellant was in fact a minor on the date when the previous decree was passed. This fact has been tried by the courts below and both parties have had an opportunity to adduce evidence on the point and there is a concurrent finding of fact against the respondent. Under these circumstances it is wholly unnecessary that the case should be sent back to the court of first instance in order that there should be a trial de novo. It is open to an appellate court to treat the proceeding arising out of an application under section 47 as if it were a proceeding in a suit and grant the necessary relief.

I would, therefore, allow the appeal and setting aside the decree of the courts below treat the proceeding as a proceeding in a suit and, subject to payment of the necessary court fees, grant the appellant Daulat Singh a declaration that the decree dated the 18th of March, 1920 is not binding on him inasmuch as he was a minor on the date when it was passed and was not properly represented. It will be open to the decree-holder, if so advised, to apply to the court which passed the decree to revive the decree by issuing fresh summons to the defendant.

Mukerji, J.:— I agree and wish to add only a few words. In the case of Imdad Ali v. Jagan Lal, this Court held that where a decree had been passed against a dead person, his legal representative could, in the execution department, challenge the validity of the decree on the aforesaid ground. It is not necessary to consider whether that principle was right or wrong and whether that principle applied to the facts of this case. It is abundantly clear on authorities that a suit is maintainable by the appellant, in the circumstances of this case, to obtain a declaration that the decree that was passed against him during his minority without the appointment of a guardian was not at all binding on him. The appellant sought to obtain a declaration to that effect by his objection put forward in the execution department. By the very salutary provisions of section 47(2) of the Civil Procedure Code his objection could be treated as a suit, and the court entertaining the objection being the same court as passed the decree, and there being no question of limitation, the objection could be disposed of as a suit and the necessary declaration could be granted. In answer to the appellant's objection the decree-holder filed his reply and the question of fact was tried, viz., whether the appellant was a minor at the date of the decree. It is common ground that no guardian was appointed for the appellant. The finding is concurrent by both the courts below that the appellant was a minor at the date of the decree. The appellant is entitled to a declaration that the decree passed against him is not binding. The appellant will have, of course, to make good the court fees payable by him in the case of a suit and the appeal from a decree in such a suit and there is nothing else to debar him from the fruits of these proceedings.

By the Court.—We allow the appeal and setting aside the decree of the court below, treat the proceeding as a proceeding in a suit and, subject to the payment of Rs. 20 by the appellant within two weeks from this date as court fees and Rs. 10 by the respondent within three weeks and in default thereof by the appellant within another fortnight, we grant the defendant Daulat Singh a, declaration that the decree dated the 18th of March, 1920, is not binding on him and the parties are restored to their original positions as they were in before that decree was passed. As the proceedings were not conducted in the proper form, we direct that the parties should bear their own costs of these proceedings throughout.

Appeal allowed.