JUDGMENT Sulaiman, Ag. C.J.
1. Abinash Chandra was the sole plaintiff in a suit for sale on the basis of a mortgage deed. Under a compromise between the parties a preliminary decree for sale was passed on 13th September 1918. Abinash Chandra died some time about 1923 and his sons were substituted in his place as his heirs. They on one occasion applied for the preparation of the final decree, but , their application was dismissed for de-fault. Subsequently they transferred their rights to Kanhya Lal who filed a fresh application for the preparation of the final decree on 6th January 1926 against the mortgagors, Sita Ram and others. There was no objection taken and a final decree was passed on 1st July 1926 in favour of Kanhya Lal and against Sita Ram and others. It was after the passing of this final decree that the present appellant Thakur Prasad in execution of a simple money decree against the mortgagors got their supposed interest put up for sale, and he purchased it in 1927.
2. When Kanhya Lal applied for execution of the decree on 2nd April 1929, objections were filed on behalf of Thakur Prasad, but they wore dismissed on 17th December 1929. On a fresh application for execution fresh objections were filed on 11th February 1930 in which it was expressly asserted that Abinash Chandra had died and his heirs had not been brought on the record within three months of his death, and the suit had accordingly abated and the final decree passed was a nullity. On 22nd February 1930, the execution Court dismissed the objection, holding that Thakur Prasad had no loons standi to raise this point under Section 47, Civil P. C, in the execution department.
3. On a fresh application for execution, Thakur Prasad has again raised the same objection which has been dismissed by the learned Subordinate Judge on the ground that the present objection in view of the previous orders is not now entertainable. The learned advocate for the objector contends that the question of the exact time of the death of Abinash Chandra should be gone into inasmuch as if he had died more than three months before any application for substitution of names was made, the suit had abated and the decree passed in that suit was a nullity.
4. No doubt if no application for substitution is filed within the time fixed by law, there is an abatement of the suit; but that abatement can be set aside on sufficient cause being shown, and the time can be extended under Section 5, Lim. Act. The fact that the Court substituted the names of the heirs in place of Abinash Chandra indicates that either the Court believed that the death had taken place within three months of the application, or that there was sufficient cause for extension of time. Even if the attention of the Court was not drawn to this circumstance, the omission would be an irregularity in the procedure adopted by the Court below. Non-compliance with the procedure laid down in Order 22 would not involve an utter want of jurisdiction, but would be a mere irregularity, so long as the decree is passed as between living persons.
5. The appellant cannot get over the fact that the final decree was passed against his predecessors-in-title and in favour of Kanhya Lal at a time when those parties were before the Court and were fully represented. Such a decree, so long as it is not set aside, is not a nullity, and the execution, Court certainly cannot go behind it. The remedy of the appellant, if any case of fraud were made out, may be by a separate suit. The execution Court must execute the decree as it finds it and cannot refuse to execute it on the ground that there was some irregularity committed in the suit before it was passed. This is not a case of a decree against a dead person which is of course a nullity, but is a case of a decree passed against living persons who are bound by the decree so long as it is not set aside.
6. We also think that in view of the previous orders of the execution Court, dated 22nd February 1930, the present objection is barred by the principle of res judicata. The objector had raised the very point that the decree had abated and was not executable, and the execution Court held that he had no locus standi to raise the point in the execution department. That order became final. He is accordingly bound by that order. On both these grounds we are of opinion that the appeal must fail, and it is hereby dismissed under Order 41, Rule 11, Civil P.C.