JUDGMENT

Sulaiman, J. - This is a judgment-debtor's appeal arising out of certain execution proceedings. A decree was passed against the defendant-appellant on the 18th March 1920. In the suit the defendant-appellant was treated as a major. He did not appear and the decree was ex-parte. When the decree was put in execution the judgment-debtor filed an objection, urging that the decree was a nullity and binding on him inasmuch as he was in fact a minor on the data when it was passed.

2. The Court of first instance went into the question of the alleged minority and came to the conclusion that the defendant was in fact a minor. Purporting to act on the execution side, it disallowed the application for execution and referred to the provisions of Order 32, Rule 5, Sub-clause 2. No express order discharging the previous decree was however passed by it. The decree-holder appealed to the District Judge who has allowed the appeal and ordered execution to proceed. The learned Judge is of opinion that the executing Court was not entitled to go behind the decree which, on the face of it, had been passed against an adult person. On the question of fact he however agreed with the view of the first Court that Daulat Singh, appellant, was in fact a minor at the time when the decree was passed.

3. In appeal before us it is contended that the order of the first Court should have been upheld and the decree held not to be binding on the appellant. There can be no doubt that the decree is not binding on that appellant. On the findings of the Courts below he was a minor on the date when the decree was passed and not having been properly represented by a guardian ad litem in the suit he was not properly made a party to the decree and cannot in any way be bound by it. This position is not seriously disputed by the learned vakil for the respondent. What however he contends is that it is not open to the execution Court to go into this question and decide the point against his client. He relies strongly on the judgment of the Calcutta High Court in Kalipada Sarkar v. Hari Mohan Dalal AIR 1917 Cal 844 where it was remarked that a proceeding to enforce a judgment is collateral to the judgment and therefore no enquiry into its validity or regularity can be permitted in such a proceeding, and the opinion was expressed that the safest course was to adhere rigidly to the established principle that every judgment and order is good until discharged or declared inoperative, and that the execution Court cannot enquire into the validity or propriety of the decree. It is not clear however whether the learned Judges were called upon to consider the advisability of treating the proceeding in execution as a proceeding in suit.

4. The Court of first instance purported to act under Order 32, Rule 5, but it is unnecessary for us to express a definite opinion whether that rule applies to a case where a decree has already been passed.

5. There is no doubt whatsoever that a separate suit for a declaration that such a decree is not binding on the minor is maintainable and in several cases their Lordships of the Privy Council have entertained such suits. We may refer to Rashid un nisa v. Mohammad Ismail Khan (1909) 31 All 572; Manohar Lal v. Jadunath Singh (1906) 28 All 585; and Partab Singh v. Bhabhuti Singh (1913) 35 All 487; The only question therefore is whether such a declaration can be given in these proceedings. Even under the old Civil P.C. it was held that it was open to an execution Court to treat an application for execution as a plaint. u/s 47(2) of the new Code it is expressly provided that a Court may, subject to any objection as to limitation or jurisdiction, treat a proceeding under this section as a suit or a suit as a proceeding and may, if necessary, order payment of any additional Court-fees. If therefore a declaration can be granted in a separate suit there is nothing to prevent an execution Court from treating a proceeding u/s 47 as a proceeding in a suit and