ORDER Mithan Lal, J.
1. This civil revision, filed by the defendants arises out of somewhat peculiar circumstances as will be revealed by the facts given below.
2. Lala Seo Prasad brought suit No. 461 of 1947 as Karta of the joint Hindu family against the present applicants in the court of Civil Judge, Dehra Dun, for recovery of Rs. 12,412/4/6. During the pendency of the suit Lala Sheo Prasad died and an application for substitution of his legal representatives was made on 1st April, 1949 praying that the name of Lala Darshan Lal be substituted in his place as Kart'a of the Joint Hindu family. Somehow no orders were passed on this application and the suit continued in the name of the deceased Lala Sheo Prasad. The parties entered into a compromise and filed it in court on 11th August, 1949. This was duly verified by the parties and it may be noted that on behalf of the plaintiff Lala Darshan Lal verified it. The compromise was recorded and a decree followed granting instalments to the defendants. Some instalments were also paid in 1950 and 1951 and the total amount thus paid came to Rs. 7,952/-.
3. When the mistake was detected an application for amendment of the decree and the plaint was made on behalf of Lala Darshan Lal on 3rd May, 1952. The prayer was that by some oversight his name had not been substituted in place of deceased Lala Sheo Prasad and no orders had been passed on the substitution application dated 1st April 1949 and so necessary amendments in the plaint and the decree may be made. Notices of this application were issued but it appears that the judgment-debtors filed no objections and ultimately an order for substitution of the name of Lala Darshan Lal in place of Lala Sheo Prasad was made and the decree was ordered to be amended by an order dated 2nd of August, 1952.
4. In spite of the order of 2nd of August, 1952, the amendment was not incorporated in the decree or plaint or register No. 3 or connected papers and the name of Lala Darshan Lal was not substituted. The decree-holder sought execution and the decree was transferred to Darjeling under Section 40, Civil Procedure Code. In that Court the judgment-debtors filed an objection under Section 47 mainly on the ground that the decree sought to be executed was a nullity, This objection was accepted by the learned Subordinate Judge who allowed the objections under his order dated 1st June, 1954. The decree-holder thereafter filed an appeal in the Calcutta High Court.
5. After the objection was allowed at Darjeeling the decree-holder made a second application to the Civil Judge, Dehra Dun, on 13th July, 1954, for amendment of the decree. Again notices were, issued to the judgment debtors who did not put in appearance. There was another order for correction of the decree and plaint and the connected papers on 11th September, 1954. It seems that as the appeal in the Calcutta High Court was pending nothing material happened thereafter. After the decree-holder's appeal in the Calcutta High Court was dismissed on 16th December, 1957, with the following observations:-
"It may be that an application for substitution having been made in proper time, the suit would not abate and even years later the Court might pass an Order granting the substitution and then deal with and decree or dismiss the suit."
the decree-holder made an execution application on 9th May, 1958, praying (1) a decree be passed in favour of the plaintiff against the defendants in terms of the compromise dated 11th August, 1949, after due notice to defendants and in the alternative (2) the suit may be treated as pending and be proceeded with on merits and a decree be passed in terms of the reliefs claimed. The plaintiff further prayed that as a sum of Rs. 7,952/- had been paid during the pendency of the suit a credit to that extent may be given and a decree be passed for the balance, A notice of this application was issued and the judgment-debtors contest, ed it. The learned Civil Judge, Dehra Dun, in view of the observations made by the Calcutta High Court came to the conclusion that the suit should be treated to be pending from the stage Lala Sheo Prasad died and as orders for substitution had already been passed and amendment of the plaint had been ordered the case should be proceeded with. It is against this order that the present revision has been filed.
6. It has been contended by the learned counsel for the applicants that the learned Civil Judge had no jurisdiction to entertain the application once the decree passed in favour of the plaintiff is found to be a nullity and has also been held to be a nullity by the Calcutta High Court. hiS further contention is that the suit could not be treated to be pending and the plaintiff should seek his any other remedy if it is open to him.
7. I have heard learned counsel for the par-ties. The facts stated earlier will go to show that the plaintiff was never at fault and soon after the death of Lala Sheo Prasad an application was made for substitution of Lala Darshan Lal as the legal representative and Karta of the joint Hindu family which was represented by the deceased Lala Sheo Prasad. This application was made within about 15th day of the death of Lala Sheo Prasad. What the Court should have done after this application was that after notice to the defendants or his counsel, which was given on 1st April, an order for substitution of Lala Darshan Lal in place of Lala Sheo Prasad should have been passed. The Urdu order-sheet goes to show that the defendants' counsel was informed and 5th April was fixed for the disposal of this application, but no Orders were passed and it seems that as the case was waiting disposal of an appeal dates were being fixed in the case for receiving the result of that appeal. In fact the date fixed in the case was 5th September, 1949, and it Was before that date that a compromise was filed on 11th August, 1949. The Court or the ministerial staff did not look into the file to find whether orders had or had hot been passed for substitution and the com-promise having been filed on behalf of the plain, tiff by Lala Darshan Lal nobody cared to find out the order for substitution. This was apparently a mistake of the Court and the plaintiff was not at fault at any stage of the suit.
8. There was a further mistake on the part of the officials and it was that when an Order for substitution had been passed On 3rd May, 1952, the ministerial, staff did not make necessary corrections or amendments in the plaint, decree, register No. 3 or other connected papers and in spite of the order the decree stood as it was. I may not be misunderstood to say that even though the decree was a nullity yet such an amendment could have been made. But when the plaintiff was vigilant and taking every steps at every stage and the mistake was committed either by the Court or by its ministerial staff the amendment should have been, made. The whole matter came to light or obtained prominence when the judgment debtors filed an objection under Section 47, Civil Procedure Code, in Darjeeling Court and the decree-holder lost the objection not only from that Court but from Calcutta High Court also.
9. The questions that arise, for consideration in this case are: (1) whether the decree, which was passed on the basis of the compromise without bringing the legal representatives of deceased Lala Sheo Prasad on record, could be corrected by incorporating the order of amendment passed in 1952 and (2) if it cannot be done whether the suit should be treated to be pending.
10. So far as the first point goes, suffice is to say that the decree that was passed on the basis of the compromise in the case was a nullity because it had" been passed in favour of Lala Sheo Prasad deceased. It is true that an application for substitution had been filed in the case on 1st April, 1949, about two weeks after the death of Lala Sheo Prasad, but by some mistake or omission no orders for substitution were passed.
Even this mistake on the part of the Court in not passing an order of substitution could not give the plaintiff a right to get such a decree amended.
As the decree when passed was a nullity any Order of amendment passed subsequent to the passing of the decree could not make it valid nor could it give the plaintiff a right to realise the decretal amount under such a decree. The decision of the Calcutta High Court given in this very case has discussed this point and the case is reported in Darshan Lal v. Happy Valley Tea Company, Ltd,, AIR 1958 Cal 691. At page 692 it has been ob served that:-
"If a decree is passed without jurisdiction, a later Order amending it, cannot remove that lack of jurisdiction and what was a nullity before the amendment does not become a valid thing after the amendment."
It can hardly be argued that the decree, as was passed without substitution, on the basis of the compromise was a valid decree and consequently any amendment of such a decree was a futle attempt. In spite of the attempt made by the plaintiff in 1952 and 1954 and in spite of the order of the Court for amendment of the decree and the connected papers, the decree could not be treated to be a valid one. It was in fact a decree which stood in the name of a dead person, Lala Sheo Prasad and the decree having been pass, ed in his favour or in favour of the joint Hindu family represented by Lala Sheo Prasad deceased was an invalid decree. There was no living person present before the Court in whose favour a decree could be passed. The prayer for amendment of the decree or the prayer for its correction on the basis of an earlier order of amendment cannot, therefore, be granted to the plaintiff.
11. The only other question which requires consideration is whether under the circumstances of the case the case should be treated to be pending. The facts will disclose that Lala Sheo Prasad died on 14th March, 1949, and an application for substitution had been given on 1st April, 1949 but in spite of notice and in spite of there being no objection no orders were passed on it. The case was thereafter compromised and a compromise decree was passed on nth August, 1949, without substitution of the legal representatives, of the deceased plaintiff. The decree stood in the name of the deceased. This decree is a nullity and so the suit should be treated, to be pending from the stage the substitution application was made. Obviously when the substitution application had been made within time for bringing the legal representatives there could be no abatement. The plaintiff had also to do nothing and whatever was to be done was to be done by the Court. If the suit could not have abated after making the substitution application the proceeding which took place after, the making of the substitution application without an order of substitution are a nullity. That means every thing done after 1st April, 1949, without substituting Lala Darshan Lal as legal representative and Karta of the joint Hindu family were all a nullity and so all the proceedings subsequent to the substitution application have no effect on the rights of the parties. The suit must be treated to be pending at the stage on which, the application for substitution was made. In other words the suit must be treated to be pending now.
12. The learned counsel for the applicants has further contended that once a decree was passed and the proceedings were closed the suit should not be treated to be pending, but this argument cannot be accepted because the defendants judgment-debtors cannot have both ways. They cannot urge the decree to he a nullify and argue at the same time that the suit should not be treated to be pending even though further proceedings were inoperative. There is no direct authority on the point, but a mention may be made to the authority of Qutub Ali v. Dwarka Das, 1904 All WN 44 in which a Division Bench under, similar circumstances but on slightly different facts expressed the, view that the case should be treated to be pending. It was a case in which the sole defendant was dead on the date of the decree and a decree incapable of execution had been passed. The Bench thought that the case should be reopened and proceedings started after bringing the legal representatives of the deceased defendant on record. Obviously the order passed by the learn-ed Civil Judge could be the only correct order in the case. The suit must be treated to be pending from the stage, not from the date of the death of Lala Sheo Prasad, as observed by the learned Civil Judge, but from the date on which the substitution application was made, that is 1st April, 1949. The revision has, therefore, no force and fails. The revision is dismissed with costs. The stay order is vacated.
13. Record of the case shall be sent back to the Court below as early as possible.