The requirement to raise the question of nullity of a decree in execution proceedings and the consequences of failing to do so.

1. This is an appeal from a decree in a suit for partition after setting aside an Udambadi' and a decree. The plaint property belonged to one Kochu Kali and her three deceased sons, Kochukrishnan, Achakunju and Kunjunni. Plaintiff and the 4th defendant are the children of Kochukrishnan, the eldest son of Kochu Kali. Defendants 1 to 3 are the children of the second son of Kochu Kail and defendants 5 and 6 are the children of the youngest son of Kochu Kali. Plaintiff's paternal grandmother, namely, Kochu Kali had executed two mortgage deeds in respect of the property with the junction of the other three co-owners. The mother of defendants 1 to 3 obtained an assignment of the said mortgages. She filed two suits, O. S. No. 566 of 1114 and O. S. No. 1011 of 1121, on the mortgages and obtained decrees and in execution of the two decrees purchased two items of property. In execution of the decree in O. S. No. 566 of 1114, the purchase was of a property having 80 cents in extent. The plaintiff's case is that the sale and execution are vitiated, because the suits were filed against Kochu Kali after her death.

2. So far as the decree in O. S. No. 1011 of 1121 no contention as regards its validity has been raised before me. So, the only question for consideration in this appeal is whether at the time when the suit in O. S. No. 566 of 1114 was filed Kochu Kali was alive.

3. The trial court found that Kochu Kali was dead on the date of institution of the suit in O. S. No. 566 of 1114 and therefore the decree and the sale in execution were null and void.

4. On appeal, the lower appellate court reversed this decision and found that at the time when the suit was instituted, Kochu Kali was alive and therefore the decree and sale were binding on the plaintiff.

5. It is admitted that in execution of the decree in question the plaintiff was impleaded as legal representative of Kochu Kali and it was after impleading her as the legal representative that the property was sold. She did not raise the contention in execution that the decree was a nullity and so it could not be executed. It was open to the plaintiff to have raised the contention in execution that the decree was a nullity, if as a matter of fact Kochu Kali was dead on the date of the institution of the suit. Not having raised the objection in execution, she is precluded from filing a suit for declaration that the decree is a nullity by constructive res judicata. In Hira Lal v. Kali Nath AIR. 1962 SC. 199 at 200 the Supreme Court said that when a decree is null and void, it is open to the defendant to raise the question of the validity of the decree in execution and object to the execution of the decree. Para.4 of the judgment is relevant and it is therefore extracted:

"The validity of a decree can be challenged is execution proceedings only on the ground that the court which passed the decree was lacking is inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction."

6. In Awadh Bihari v. Sudarsan Bai AIR. 1965 Patna 427, it was held that the question that a decreed a nullity should be raised in execution of that decree and if the judgment-debtor failed to raise the question in execution, he will be precluded from filing a suit for a declaration that the decree is a nullity.

7. In Mulla's Code of Civil Procedure, Vol.1,13th Edition, at pages 218-219, the learned author states:

"But the law is now settled by the decision of the Supreme Court in Hiran Singh v. Charan Paswan (1964 S. C. 340) that though a court executing a decree cannot go into any question as to the