The plaintiff, in Original Suit No. 185 of 1901, obtained a decree, against the respondent, who was the second defendant therein, and his father, for the payment of a sum of money lent to the father and alleged to have been paid for the marriage of the respondent. The suit was on a promissory note executed by the father alone. The plaint contained a prayer for a personal decree against both the defendants. Neither of them appeared or contested the claim. A decree was passed as prayed for. An application to set aside the decree was made by the respondent, but the application was rejected as he failed to comply with the terms of the order which directed him to furnish security. The father, the first defendant, is dead. An application was once before made to execute the decree against the second defendant and he was arrested in pursuance of the order then passed to execute the decree. The amount was not then realized. The plaintiff now applies to execute the decree and the District Judge has held that the decree making the second defendant personally responsible was not a valid decree, apparently on the ground that the circumstances which alone would warrant a personal decree against the second defendant did not exist and had not been proved.
If a decree is passed by a Civil Court which had absolutely no jurisdiction to pass it, even a party to the proceeding may impeach it as a nullity, though it had not been set aside in appeal or otherwise.
This, however, is obviously not such a case; as the District Munsif, in Original Suit No. 485 of 1901, was quite competent to pass a personal decree against the second defendant if the evidence required to establish the personal liability had been then produced.
The fact that a decree was passed in the absence of such evidence would not make it a decree passed without jurisdiction and a party to the suit is precluded in execution from impeaching the decree which was passed without opposition and which has not been set aside. (Cf. Revell v. Blake(1), Sordarmal v. Aranvayal Sabhapathy(2) and Gomatham v. Alamelu Komandur Krishnamacharlu(3)).
The case of Lakshmanaswami Naidu v. Rangamma(4) is clearly distinguishable. The decision proceeded on the footing that the decree there in question was on the face of it null and void.
We, therefore, reverse the order of the District Judge and direct that the application for execution be replaced on the file and proceeded with in accordance with law. The respondent will pay the appellant's costs in this and in to lower Appellate Court.