The burden of proving the death of a person and the applicability of the presumption of death under S.108 of the Indian Evidence Act in determining the capability of executing a decree.

1. The plaintiffs in O.S.130/84 before the Sub Court, Kottayam are the revision petitioners.

2. The petitioners were sureties for the transactions, one Mathew Joseph was alleged to have had with certain strangers in connection with procuring of jobs for them at his place of employment. The case of the plaintiffs is that Mathew Joseph failed to get employment to those persons and therefore the petitioners, being the sureties had to repay the said persons the monies, Mathew Joseph had taken from them. To recover the monies thus repaid, the petitioners filed the suit, O.S.130/84 against Mathew Joseph. The suit was decreed exparte on 1-12-1984. The petition to execute the decree was filed in 1987 is E.P.45/87. The respondent herein one of the legal representatives of Mathew Joseph filed E.A941/88 in the E.P. for a declaration that the decree is incapable of execution as the same was obtained against a dead person. He in support of this contention pressed into service S.107 and 108 of The Indian Evidence Act. The court below after considering the various aspects of the said contention has, by the order under challenge, declared that the decree is incapable of execution.

3. That the parties had approached this court once before, can be seen from the order in C.R.P. 42/1989. The court, as is seen from the said order dated 22nd February, 1989 set aside the order of the executing court refusing to decide the issue namely whether the decree is void and hence not capable of execution, on the ground that there was no prayer in the petition for such a declaration and remanded the said issue to the executing court for a disposal on merits. The following except from the order gives a true picture of the respective case set up by the parties and considered by this court.

"The decree obtained by the respondents (petitioners herein), according to the petitioner (respondent herein), is null and void and therefore incapable of being executed. The reason given by the petitioner in the application from out of which this revision arises is that the judgment debtor was not heard of for more than seven years and therefore he must be presumed to be dead at the time when the decree was passed. In other words the decree is one passed against a dead person and therefore it is a nullity, incapable of execution".

4. That the parties to a remand order are bound by the said order is beyond dispute. It is relevant in this context to keep in view a fairly well settled principle that even a wrong decision of a court having jurisdiction is as much binding on the parties thereto as a right one unless it be that the said decision is superseded by appellate or revisional orders or higher tribunals or reviewed by the said court provided law recognises the same. It therefore follows that if the higher court /tribunal has acted within its jurisdiction in remanding a case/matter/issue/question it is the duty of the subordinate court/ authority to carry out the direction contained in the order of remand and retry the case/ issue/matter/question because but for the order of remand the subordinate court/ authority had no sesin of the case/matter/issue/question. The jurisdiction to retry the case/matter/issue question is circumscribed by the order of remand (See AchutanNair v. Raman and others -1979 K.L.T. 119). This being the position in law as regard the right of panics to a remand order, neither the petitioners nor the respondent herein is entitled to rake up questions which do not come within the purview of the remand order. The question as to whether the executing court can declare a decree a nullity unless it be that the defect of want of jurisdiction etc. is apparent on the face of the record, does not arise for consideration because, as already noted, that question has not been remanded to the executing court for a fresh consideration. The arguments advanced by the counsel for the parties on this question therefore are not necessary to be considered.

5. The o