Hari Lal Agarwal, J.

1. This appeal is by the decree holder. In the execution that was levied for realisation of the decree for Rs. 6,590.00 against the judgment-debtors, several objections were raised to its executability, namely, (1) minor defendants, being Nos. 4 to 7, 11, 18 and 19, were not . properly represented, (2) one of the defendants, namely, defendant No. 3 Mossomat Bilot Devi, mother of defendants 1 and 2, had already died before the passing of the decree, and (3) the judgment-debtors being Bind by caste and as such members of a backward community within the meaning of Sec. 49 M of the Bihar Tenancy Act, were protected under the said provision and their properties could not be sold.

2. Now I shall state the relevant facts in brief. On 9.3.1959 a sum of Rs. 4,100.00 was borrowed from the plaintiff under a simple mortgage bond executed by defendants 1 and 2. Mortgage Suit No. 32 of 1965 was accordingly filed in the Court of the First Subordinate Judge, Arrah, impleading not only the executants-defendants 1 and 2, but all the members of their family. An ex-pane mortgage decree was passed, as already, indicated above, which was put into the execution when the objections indicated above were taken by the judgment debtors. In the miscellaneous case that was registered on the application under Section 47 read with some other sections of the Code of Civil Procedure, the stand of the decree-holder was that the executing court being bound by the decree could not go behind it and on this simple ground, without going into other discussions, it dismissed the objections of the judgment-debtors. On appeal by them, the Learned Additional District Judge took a contrary view and upheld the objection leaving it open to the executing court to decide as to whether in spite thereof the execution case would proceed or not.

3. Learned Counsel appearing in support of the decree holder-appellant contended that the lower appellate Court had committed serious error of law in holding that on account of the decree having been passed also against a deceased defendant (Mossomat Bilot Devi, defendant No. 8), the decree as a whole was a nullity. On the same lines it was further contended that for the same reasons the non-production of the minors, even assuming for the sake of argument, could only absolve their liability and would not affect the executability of the decree against the other judgment-debtor on whom it was binding. With respect to the protection claimed under Sec. 49 M it was contended that the said provision of the Bihar Tenancy Act was invalid as being ultra vires Article 19(1)(f) of the Constitution of India.

4. I will first take up the effect of the death of defendant No. 8 on the decree. It is, no doubt, true that executing Court has got a very limited jurisdiction to go behind the decree and one of the grounds being, whether the decree is a nullity, inter alia, having been passed against a dead person. In the case of a deceased being the sole defendant or respondent, his death undisputedly renders the whole suit or appeal incompetent on the ground of abatement, but where the deceased is one of the many defendants or respondents the effect of partial abatement on the whole suit or appeal would depend upon the nature of the suit or appeal. If on account of the partial abatement the whole suit or appeal becomes incompetent, then also in a given case the entire decree becomes a nullity, but if the suit or appeal can proceed to a final adjudication in the absence of the legal representatives of the deceased defendant or respondent, the death or, for the matter, abatement of suit or appeal to that extent would not affect the rest of the suit or appeal and a decree passed against the defendants or respondents would be good and operative against them. In short, the acid test would be to see as to whether the suit itself could be instituted and successfully prosecuted without the deceased defendant or, as in the present case, wi