JUDGMENT
Venkatasubba Rao, J.
1. The question we have to decide arises in execution of a decree passed in a suit brought to enforce a mortgage. The first three defendants in that suit were father, mother and son respectively. The 4th defendant is the wife of the 3rd. The 2nd defendant, the mother, died before the passing of the preliminary decree. The 5th and the 6th defendants, her daughters, were added as her legal representatives, the 3rd defendant, her son, another heir, being already on the record. I may mention, though it is not necessary for the purpose of this case, that the 5th defendant died and her children were brought in her place on the record. It was after these changes in regard to parties that the preliminary decree came to be passed. Subsequent to the passing of that decree, the 3rd defendant died. His legal representatives were his father, the 1st defendant, his widow, the 4th defendant and his infant son, who now intervenes in execution and impeaches certain proceedings as being void. On the death of the 3rd defendant no application was made to bring his legal representatives on the record. They were three in number as I have just shown. Two of them who were adults were already on the record. The third, whose name was omitted to be added was an infant. What happened, however, was, that without the 3rd defendant’s legal representatives being formally brought on the record, the final decree in the case was passed. In execution of this decree, a certain sale was held. The 3rd defendant’s infant son, to whom I have already referred, now applies that the sale may be set aside on the ground that it is null and void.
2. The first question that arises is, what is the effect of the omission to bring formally the representatives of the 3rd defendant on the record? What the result would have been if such omission had occurred, before the passing of the preliminary decree, it is unnecessary to enquire, although I very much doubt, when the representatives happen already to be on the record, whether Order 22, Rule 4 applies and the suit abates, as against the deceased party, on the ground that they were not formally added as such representatives. Here, it was after the passing of the preliminary decree, that the 3rd defendant died; to such a case, it has been held that the provisions relating to abatement do not apply. The principle is thus stated in the judgment of the Full Bench in Perumal Pillay v. Perumal Chetty (1928) l.L.R. 51 Mad. 701: 55 M.LJ. 253:
The right of action … is determined by a preliminary decree because the final deeree is only by way of working out in detail the principles laid down and determined in the preliminary decree-
3. The case is then analogous to a party being absent on the record at the stage of execution. A good deal of argument was directed at the Bar to the point, what are the powers of an Executing Court to call the decree in question, first, when it is wholly null and void, and, secondly, when it is merely voidable? Mr. Sitarama Rao contends that in neither case can the Executing Court decide questions relating to the executa-bility of the decree. He next urges, that although he may concede without admitting, that the Executing Court may refuse to give effect to wholly void decrees, in the case of other decrees, its duty is merely to execute them as they stand. The decree before us is clearly not a nullity; and in the present case it is unnecessary to express any opinion on the vexed question regarding the powers of an Executing Court.
4. The question in this case is not one of procedure but of substance. The cases cited at the Bar as to the proper remedy-open to the petitioner need not, in’ my opinion, be discussed. The question of remedy does not arise unless the party has a right which he can enforce; and it is therefore needless to consider whether Section 47 applies, or whether his remedy is by an independent suit. Having regard to the facts of the present case, the principle applicable is that set forth by the Privy Council in the judgment in Khiarajmal v. Daim (1904) I.R. 32 I.A. 23: I.L.R. 32 C 296 (P.C.). It is sufficient to state only a few facts of that complicated case. Nabi-baksh was one of many defendants to the suit which was brought to enforce a mortgage. On a petition presented by him and others the suit was referred to arbitration. Shortly afterwards, Nabibaksh died leaving two widows, an infant son and a daughter. The names of the widows and son were added to the record but the daughter was omitted. The award was duly made and a decree passed. In execution of that decree, certain sales took place. At the instance of the heirs of Nabibaksh, the question arose in a subsequent suit (the one before the Privy Council), are the proceedings binding upon Nabi-baksh’s estate? Their Lordships held that notwithstanding that the name of the infant daughter was omitted, the estate was sufficiently represented and that the share of the deceased Nabibaksh in the equity of redemption in the property sold was wholly bound by the sale and irredeemable.
5. The same principle was applied in Kadir Mohideen Marakkayar v. Muthukrishna Aiyar (1902) I.L.R. 26 M. 230 : 12 M. L. J. 368. That was a suit upon a mortgage, and before the decree was passed the mortgagor died. The plaintiff thereupon brought the mortgagor’s son, the 1st defendant, on the record as his legal representative, and after that a decree for sale was passed. As a fact, the 1st defendant was not the sole representative as the mortgagor had left two other sons and three daughters. In execution of the decree, the mortgaged property was sold and the question arose, whether the sale was binding upon the second son of the mortgagor whose name had not been added. It was held that the mortgagor’s estate was sufficiently represented and that the sale passed his entire interest including that of his second son. The learned Judges observe:
In our opinion a person whom the plaintiff alleges to he the legal representative of the deceased defendant and whose name the Court enters on the record in the place of such defendant sufficiently represents the estate of the deceased for the purposes of the suit and in the absence of any fraud or collusion the decree passed in such suit will bind such estate. It will of course be open to any other person who is or claims to be the legal representative or one of the legal representatives of the deceased defendant to apply to have his name also entered on the record as a legal representative in the place of the deceased defendant.
6. It is noteworthy that in the judgment, it is stated that in the case of a Muhammadan family, there is a special need to apply this rule. Otherwise, when a Muhammadan dies leaving innumerable heirs (as not infrequently happens) the omission to bring any one of them on the record may wholly vitiate the proceedings. I refer to this fact specially to show that the contention of Mr. Govinda Menon is without force, that the theory of representation, while it holds good in the case of Hindu joint families, is inapplicable where the parties happen to be Muhammadans. In these two cases which 1 have quoted, the death occurred before the decree was passed. The rule applies even with greater force when the party, as in the present case, dies subsequent to the decree, that is to say, the decree which declares and determines the rights of the parties. The case which more nearly resembles this is Dip Narain Rai v. Lachman Upadhiya (1925) I.L.R.47 A 466 After the preliminary decree, the judgment-debtor died and one of his representatives was brought on the record. A final decree was thereafter passed, which, it was held, was binding upon the other representatives whose names had been omitted to be added.
7. The representation may be incomplete but yet sufficient. Vide Ramaswami Chettiar v. Oppilamani Chetty (1909) I.L.R. 33 M. 6 at 8: 19 M.L.J. 671. Was the estate then of the 3rd defendant sufficiently represented? He left three heirs, one of them being his minor son, the present petitioner; but the other two, who were brought on the record, were the paternal grandfather and the mother of the minor. They must be held to have sufficiently represented the estate and the decree that was passed and the sale that was held are therefore binding upon the entire estate, including that of the infant son. Mr. Govinda Menon urges strongly that there must be something on the record to show that the Judge, who made the order bringing the representatives on the record, applied his mind to the question and was satisfied that the representation was, in the circumstances, sufficient. There is an obvious fallacy in this argument, for, when the Judge makes the order, it is assumed he is not aware of the existence of other representalives. If he then proceeds upon the footing that the representative whose name he is adding is the sole representative, how can it be said that he has applied his mind to the question of the sufficiency of representation? There is one feature of this case, which, on facts distinguished it from the cases I have referred to. Some of the legal representatives were already here on the record, though, of course, in a different capacity; but in those cases an application for that purpose had to be made. This cannot make any difference in principle. The question is not one of form but of substance. The father and the widow of the 3rd defendant doubtless knew that they were his legal representatives, and I fail to see why on the ground that they were not so described, they should be held not to have represented his estate. A preliminary decree having been passed, they could object to the final decree, only by showing that in the meantime the amount declared to be due had been paid. It is not alleged that any such payment was made and that the decree should not have been made absolute. There is no reason for holding that there was not sufficient representation when the only adult representatives were on the record, and, having no defence to make, allowed a final decree, in the usual course, to be passed. The minor, therefore, cannot question the sale which, as I have shown, is binding upon him. The appeal is allowed with costs throughout.
Madhavan Nair, J.
8. I agree In this case a preliminary decree for sale on a mortgage was passed against defendants 1 to 3. Before the final decree was made, the 3rd defendant died. His legal representatives were his father, the 1st defendant, his widow, the 4th defendant, and an infant son who now takes objection in the execution proceedings. These were not brought on record as legal representatives before the final decree was passed though two of them who were adults were already on record. In execution of the final decree the rights of defendants 1 to 3 were sold. The respondent, the son of the deceased 3rd defendant whose name was omitted to be brought on the record as a legal representative of the 3rd defendant now objects to the sale. The question for consideration is whether the objection raised by him regarding the validity of the decree can be gone into in execution. The District Judge relying on two decisions of this Court, Subramania Aiyar v. Vaidyanatha Aiyar (1913) I.L.R. 38 M. 682 and Arunachalam Chetty v. Abdul Subhan Sahib (1925) 50 M.L.J. 232 and also on the decision of the Calcutta High Court in Gora Chand Haldar v. Prafulla Kumar Roy (1925) ILR 53 C 166 (F.B.), came to the conclusion that the objections raised by the respondent could be heard and decided by the Executing Court. The decisions quoted are inapplicable to the present case as the decrees in those cases were void decrees and the Court had no jurisdiction to pass such decrees. The same cannot be said about the decree in the present case. Though the respondent was not brought on record as the legal representative of the 3rd defendant in the suit before the final decree was passed, the decree cannot be said to be an absolute nullity on that ground. It is to be noticed that the 3rd defendant was on record at the time when the preliminary decree was passed and that he died only subsequently. It was held in Perumal Pillay v. Perumal Chetly (1928) I.L.R. 51 Mad. 701: 55 M.L.J. 253 that Order 22, Rules 3 and 4 of the Code of Civil Procedure do not apply to cases of death after the passing of the preliminary decree in a suit. According to the opinion of the Full Bench:
The right of action … is determined by a preliminary decree because the final decree is only by way of working out in detail the principles laid down and determined in the preliminary decree.
9. If so, the decree passed in this case cannot be objected on the ground that it is a void decree and that the Court had no jurisdiction to pass such a decree. It follows that the objection raised by the respondents cannot be gone into in execution. This appeal must therefore be allowed with costs throughout.
10. In this view I do not discuss the question whether the final decree in this case is a valid decree binding on the respondent, having regard to the fact that the other legal representatives of the deceased 3rd defendant, viz., the 1st and the 4th defendants, were already on record though they were not formally brought on record as legal representatives.
