Judgment :- 1. The decree-holder is the appellant. The suit was on a hypothecation bond executed by the first defendant in favour of the plaintiff charging two items of properties. Defendants 2 and 3 were impleaded as subsequent encumbrancers of the properties. The suit was first decreed exparte on 23.3.1105. The decree awarded interest on the principal amount at the rate of 12 per cent per annum from the date of suit till the date of decree and thereafter at the rate of 6 per cent per annum. The date of suit was 8.12.1104. The plaintiff died after the date of the decree and his legal representative applied for execution. In the meanwhile the second defendant also died and his legal representative was brought on record as the fourth defendant. When the decree schedule properties were proclaimed for sale, the fourth defendant objected to the proclamation and also filed a petition on 22.1.1119 to set aside the exparte decree. No notice of this petition was given to the first defendant. The petition was allowed on 20.7.1119 and the suit was restored to file. No notice of the subsequent proceedings also was given to the first defendant. The fourth defendant contended that he was entitled to priority in respect of certain charges on plaint item No. 2. This contention was upheld by the court, and the suit was decreed on 9.12.1119 against the first defendant and plaint schedule properties subject to the prior charge declared in favour of the fourth defendant over item No. 2. Interest was allowed on the principal amount at 12 per cent per annum from the date of suit till the date of decree, i.e., from 8.12.1104 to 9.12.1119, and thereafter at the rate of 6 per cent per annum. 2. The first defendant sold item No.1 to the 8th respondent directing him to pay off the decree-debt. He deposited in court on 27.12.1122 Rs. 3,321-20 Chs. which was the amount shown in the proclamation as per the execution petition dated 23.6.1117 and prayed that it might be recorded that the decree was satisfied. The decree-holder contended that a sum of 195871/2 Fanams was still due to him as per the decree dated 9.12.1119. He deposited in court on 27.12.1122 Rs. 3,321-20 Chs. which was the amount shown in the proclamation as per the execution petition dated 23.6.1117 and prayed that it might be recorded that the decree was satisfied. The decree-holder contended that a sum of 195871/2 Fanams was still due to him as per the decree dated 9.12.1119. If interest is calculated at 12 per cent per annum from the date of suit till the date of the second decree the balance amount claimed by the decree-holder will be found due to him. But, if interest at that rate is calculated only till the date of the first decree, viz., 23.3.1105, and thereafter only at the rate of 6 per cent per annum as provided in that decree the amount deposited by the 8th respondent will be sufficient to satisfy the decree. Therefore, the question to be decided was whether the first defendant was bound by the second decree, dated 9.12.1119. The court below held that since the second decree was passed without notice to the first defendant he was not bound by that decree and that he was liable to pay only the amount which the decree-holder would be entitled to under the decree dated 23.3.1105. 3. It was contended for the appellant-decree-holder that the view taken by the court below is wrong, that there is only one subsisting decree in the case, viz. that dated 9.12.1119, that the first defendant is bound by that decree, and that the execution court is not competent to question the validity of the decree. 4. It was admitted that no notice was given to the first defendant on the application by the fourth defendant to set aside the exparte decree or of the proceedings in the suit after it was restored to file. But it was argued for the appellant that, under O.IX R.14 of the Code of Civil Procedure, notice of an application by a defendant to set aside an exparte decree need be given only to the opposite party and that, since the opposite party in the case was only the plaintiff, notice to the plaintiff was sufficient compliance with the rule. This argument has to be accepted. It is supported by the decisions in Susil Kumar Choudhury v. Annada Basanna Lahiri (55 Calcutta 78) and Maitheen Kunju v. Ahamath Umma (24 T.L.J. 610). 5. This argument has to be accepted. It is supported by the decisions in Susil Kumar Choudhury v. Annada Basanna Lahiri (55 Calcutta 78) and Maitheen Kunju v. Ahamath Umma (24 T.L.J. 610). 5. As for the omission to give notice to the first defendant of the proceedings in the suit after it was restored to file, it was contended that there is no provision in the Code of Civil Procedure requiring the issue of such notice. It is true that there is no express provision in the Code to the effect that when the suit is restored to file on the application of a defendant notice should be given to the co-defendants. But, it is a fundamental principle governing all judicial procedure that no party will be bound by a decision passed without notice to him. Reference may be made to the following passage in Black on judgments: "It is an unquestioned principle of natural justice that a man should have notice of any legal proceeding that may be taken against him, and a full and fair opportunity to make his defence. The law never acts by stealth; it condemns no one unheard. It is true that in proceedings in rem the notice may be constructive only, but here action is directed against the thing itself, and there is no attempt to fasten a personal liability upon the parties concerned. It is true also that constructive service of process is authorised in some other cases, but not for the purpose of a personal judgment. A personal judgment rendered against a defendant without notice to him, or an appearance by him, is without jurisdiction and is utterly and entirely void". The following observation in Horner v. State Bank (1 Ind. 130) is quoted by the learned author: "We think it may be regarded as settled, that a judgment of any court, in a suit requiring ordinary adversary proceedings, that appears upon its face or may be shown by evidence (in a case where it may be shown) to have been rendered without jurisdiction having been acquired, by notice, of the person of the defendant, or without jurisdiction of the subject matter, is void and may be treated as being so when it comes in question collaterally". The learned author proceeds: "Nor is this rule confined to judgments at law. The learned author proceeds: "Nor is this rule confined to judgments at law. A decree in chancery against a defendant who was never served with process and did not appear, is void and may be set aside although not appealed from. And if the court has not acquired jurisdiction of the person of the defendant, as in the case that no sufficient process has been served upon him, no judgment, even of abatement, can be rendered against the plaintiff; for the defendant must become a party before the court before he can have a judgment". (Paragraph 220 - Second Edition). With regard to the jurisdiction of the court to give decision in a proceeding this is what the learned author says in paragraph 215: "In order to the validity of a judgment, the court, must have jurisdiction of the persons, of the subject matter, and of the particular question which it assumes to decide. It cannot act upon persons who are not legally before it, upon one who is not a party to the suit, upon a plaintiff who has not invoked its arbitrament, or upon a defendant who has never been notified of the proceeding". The learned author says in paragraph 218: "It is a familiar and universal rule that a judgment rendered by a court having no jurisdiction of either the parties or the subject matter, is void and a mere nullity, and will be so held and treated whenever and whereever and for whatever purpose it is sought to be used or relied on as a valid judgment". 6. The following passages from Brown on jurisdiction will also make the point clear: "No binding personal judgment can be rendered by any court against any defendant not served by process and not appearing". (Page 35 - Second Edn.) "When service of the notice or process is made the court acquired jurisdiction after the lapse of the time fixed for the defendant's appearance, and if he fails his default will be entered. The court has necessarily the power to determine the sufficiency of service. If it determines this wrongfully and enters the default prematurely, the defendant should call its attention to it and ask that the default be set aside. The court has necessarily the power to determine the sufficiency of service. If it determines this wrongfully and enters the default prematurely, the defendant should call its attention to it and ask that the default be set aside. Hence the rule that such error is not jurisdictional:, (Page 202) "A distinction is to be made between a case where there is no service whatever, and one which is simply defective or irregular. In the first case the court acquires no jurisdiction and its judgment is void; in the other case, if the court to which the process is returnable adjudges the service to be sufficient, and renders a judgment thereon, such judgment is not void, but only subject to be set aside by the court which gave it, upon reasonable and proper application, or reversed upon appeal". (Page 203 - Notes) 7. This is what Freeman says on the subject: "There is a difference between a want of jurisdiction and a defect in obtaining jurisdiction. At common law the defendant was brought within the power of the court by service of the brevia, or original writ. In this country the same object is accomplished by service of summons, either actual or constructive, or of some other process issued in the suit; or by the voluntary appearance of the defendant in person or by his attorney. From the moment of the service of process, the court has such control over the litigants that all its subsequent proceedings, however erroneous, are not void. The fact that defendant is not given all the time allowed him by law to plead, or that he was served by some person incompetent to make a valid service, or any other fact connected with the service of process, on account of which a judgment by default would be reversed upon appeal, will not ordinarily make the judgment vulnerable to a collateral attack". (Freeman on Judgments, S. 126). 8. In the present case, a decree had been passed against the first defendant for a particular amount. Subsequently that decree was set aside without notice to him and a fresh decree was passed against him for a much larger amount. Since notice of the subsequent proceedings was not given to him he had no opportunity to contest the claim for interest at 12 per cent per annum from 23.3.1105 to 9.12.1119. Subsequently that decree was set aside without notice to him and a fresh decree was passed against him for a much larger amount. Since notice of the subsequent proceedings was not given to him he had no opportunity to contest the claim for interest at 12 per cent per annum from 23.3.1105 to 9.12.1119. He was not legally before the court when the second decree was passed. The court had, therefore, no jurisdiction to give a decision against him. It will be opposed to all principles of natural justice to hold that a person will be bound by a decision given against him in proceedings of which he had no notice. This is what Venkata Rao, J., said in 24 T.L.J. 610, already referred to: "One of the fundamental principles governing all judicial procedure is that no orders or decisions should be passed against a party without notice to him. Here we have a case of a suit being decided against a person without giving him an opportunity to appear and defend himself. I am of opinion that the further trial of the suit without notice to 6th defendant was material irregularity and that he cannot be bound by the decision subsequently passed". That was a suit for partition. There were eight defendants in the case. The 6th defendant was sought to be made liable for a sum of Rs. 10,000/- income from the suit properties alleged to have been collected by him. Defendants 2, 6, 7 and 8 filed written statements in the case. But subsequently defendants 2, 7 and 8 failed to appear and give evidence, and they were declared exparte. The plaintiffs and the sixth defendant filed a compromise petition in the case by which the plaintiffs gave up their claim against the sixth defendant. The decree that was passed made defendants 1, 2,3 and 5 liable for the income from the properties. Subsequently, the first defendant applied to have the exparte decree set aside. Notice of the petition was given only to the plaintiffs. The exparte decree was set aside and the suit was restored to file. Notice of the subsequent proceedings also was not given to the sixth defendant. Afterwards, the third defendant also appeared and sought permission to contest the suit, and permission was granted. Notice of the petition was given only to the plaintiffs. The exparte decree was set aside and the suit was restored to file. Notice of the subsequent proceedings also was not given to the sixth defendant. Afterwards, the third defendant also appeared and sought permission to contest the suit, and permission was granted. The decree that was finally passed in the case allowed the plaintiffs and the other sharers to recover from the 6th defendant their respective share of the income from the properties. In appeal filed by the 6th defendant, the High Court held that the second decree passed in the case without notice to the 6th defendant would not bind him. That decree was, therefore, set aside and the case was remanded for fresh disposal. It is true that in this case the second decree was set aside, and therefore there was no occasion for the execution court to consider whether it could treat the decree as a nullity so far as the sixth defendant was concerned and could refuse to execute it against him. It was, however, observed by the learned judge that the decree was not binding on the sixth defendant. 9. The question directly arose for consideration in Ramakrishna Panicker v. Dominic (26 T.L.J. 319). That was a suit for recovery of possession of properties with arrears of rent. An exparte decree was passed in the case by which the first defendant alone was made liable for rent. On the application of the third defendant the exparte decree was set aside and the suit was restored to file. Notice of the restoration application was given only to the plaintiffs and not to the second defendant. No notice of the further trial of the suit was also given to the second defendant. A fresh decree was passed in the case by which all the defendants were made liable for rent. In execution, the second defendant contended that the second decree was a nullity in so far as it made him liable for rent and that the decree could not be executed against him. The execution court repelled this contention holding that it could not question the validity of the decree. This view was upheld by the first appellate court also. In second appeal two grounds were urged on behalf of the second defendant. The execution court repelled this contention holding that it could not question the validity of the decree. This view was upheld by the first appellate court also. In second appeal two grounds were urged on behalf of the second defendant. The first was that the court had no jurisdiction to pass a second decree making the second defendant liable for rent without giving him notice of the restoration of the suit and the fresh trial. The second ground was that the decree passed against the second defendant for rent, being one passed without jurisdiction, was a nullity and that the execution court could refuse to execute it against him. Both these contentions were accepted by the High Court. Parameswaran Pillai, J., observed: "It is clear that the second defendant was not liable under the first decree either for past rent or for future profits. Before the first decree could be modified to the prejudice of the second defendant, it was essential to give him notice of the further trial of the suit after restoration and to hear his defence. A personal judgment rendered against the defendant without notice to him and behind his back is without jurisdiction and is entirely void". With regard to the Second ground the learned judge observed: "But the question is where a decree, having been passed by a court without jurisdiction to pass it, is void and a nullity, is the execution court competent to question its validity and refuse to execute it? On this point, the rulings in British India have not been uniform. In view of the conflict of rulings, the Calcutta High Court referred the point to a Full Bench of five judges, and Their Lordships held in Gora Chand Haldar v. Prefulla Kumar Roy (53 Calcutta 166) that'Where the decree presented for execution was made by a court which apparently had no jurisdiction, whether pecuniary or territorial or in respect of the judgment-debtor's person, to make the decree, the executing court is entitled to refuse to execute it on the ground that it was made without jurisdiction'. This view was affirmed in a later case Harihandhu Pal v. Messrs. This view was affirmed in a later case Harihandhu Pal v. Messrs. Harimohan Mahim Chandra Kailash Chandra and Hiralal Saha (57 Calcutta 931) where the decree presented for execution was void as it was passed against a dead man and the court had at the time of the decree no jurisdiction in respect of the defendant's person. The same reasoning must apply where a decree is passed against a person without issue of notice to him of the proceedings and behind his back, and it should be treated as having been passed without jurisdiction in respect of the judgment-debtor's person". 10. The matter again came up for consideration before the Travancore High Court in Kesavan v. Sosamma (28 T.L.J. 256). In that case the suit was based on a hypothecation bond executed by the first defendant in favour of the second defendant. The plaintiff got an assignment of the right from the second defendant. In the decree that was originally passed in the case the first defendant was made liable for a part of the claim and the second defendant for the remaining part. The second defendant was exparte. Subsequently, on the application of the second defendant, the exparte decree was set aside and the suit was restored to file. The first defendant had no notice of these proceedings. The fresh decree that was passed in the case made the first defendant also liable for the whole plaint amount. When that decree was sought to be executed against the first defendant, he contended that the decree passed without notice to him was a nullity so far as he was concerned and that it could not be executed against him. Following the decision in 26 T.L.J. 319, the High Court held that the decree passed against the first defendant without notice to him and behind his back was one passed without jurisdiction and was, therefore, void. 53 Calcutta 166 and 57 Calcutta 931 were also relied on. It was argued for the respondent that the correctness of the Full Bench decision in 53 Calcutta 166 was doubted by a Single Judge of the Calcutta High Court (Costello, J.) in Kali Charan v. Bibhuti Bhusan (1933 Calcutta 85). Reference was also made to the rulings in Gulam Mahomed v. Mt. It was argued for the respondent that the correctness of the Full Bench decision in 53 Calcutta 166 was doubted by a Single Judge of the Calcutta High Court (Costello, J.) in Kali Charan v. Bibhuti Bhusan (1933 Calcutta 85). Reference was also made to the rulings in Gulam Mahomed v. Mt. Fazul Nishan (1932 Lahore 289), S.A. Nathan v. S.R. Samsam (9 Rangoon 480) Zemindar of Etiyapuram v. Chidambaram Chetty (43 Madras 675) Jungli Lal v. Laddu Ram (1919 Patna 430), and Lekshmi Bhai v. Ravji (1929 Bombay 217). The question was discussed at length by Parameswaran Pillai, J. with reference to those cases, and particularly Kali Charan v. Bibhuti Bhusan (1933 Calcutta 85); and the learned judge held: "Where a decree is passed against a person without process being issued to him and behind his back it cannot be said to be a decree in the eye of the law for it has no effect whatever so far as the person against whom the decree is passed". The learned judge further observed: "The effect of the omission to issue notice or process on the defendant in respect of a cause instituted against him is different from defective service or waiver of notice or constructive notice and other similar steps which would vest jurisdiction to pass a judgment however erroneous the exercise of such jurisdiction may be". The learned judge quoted the following observation of Mukherjea, J. in Ashuthosh Sikdar v. Behari Lal Kirtania (36 Calcutta 61) relating to the distinction between in irregularity and nullity, i.e., "An irregularity is a deviation from a rule of law which does not take away the foundation or authority for the proceeding, or apply to its whole operation, whereas a nullity is a proceeding that is taken without any foundation for it, or is so essentially defective as to be of no avail or effect whatever, or is void and incapable of being validated". As a result of the discussion of the case law on the point the following conclusion was arrived at by the learned judge: "Whether the decretal court passed a decree on the footing that there was due service of summons - Whether such finding was erroneous or not - the execution court had no jurisdiction whatever to go behind the decree as in such cases the decretal court could not be said to have acted without jurisdiction. But the question in the present case is whether the effect is the same when, on the face of it, the defendant against whom a personal decree is claimed was admittedly not notified of the proceeding even by the issue of notice or summons to him. In such circumstances can it be said that the decree is a decree in the eye of the law? It seems to me that the answer should be in the negative, for virtually the decree is one passed against a person who was not notified as a party to the suit". The learned judge then laid down the following propositions of law: "(1) A decree when passed with jurisdiction is executable and the execution court cannot go behind it and refuse execution. (2) The validity or propriety of the decree cannot be questioned by the execution court even though the decree may have been passed in the erroneous or irregular exercise of jurisdiction by the decretal court. (3) a decree which is altogether a nullity in the sense that it is no decree in the eye of the law is inexecutable and the executing court is not bound to execute such decree. (4) A decree which is passed against the person of a defendant without any notice or process being issued to him is a nullity so far as the person of the defendant is concerned and must be regarded as no decree in the eye of the law and the executing court is perfectly competent to disregard such decree and refuse to execute it". 11. Reference was made by learned counsel for the appellant to the decision of the Privy Council in Ashfaq Hussin v. Gauri Sahai (33 Allahabad 264) in support of the position that the second decree passed in the case cannot be regarded as a nullity. In that case a decree for sale on a mortgage was passed against several defendants jointly on 25.8.1900 and made absolute on 21.12.1901. On the application of one of the exparte defendants, the decree was set aside as against her on 11.3.1902. Subsequently, a fresh decree was passed on the merits against that defendant on 15.8.1902. The appeal preferred by her from that decree was dismissed by the High Court on 16.11.1904 and the decree was made absolute on 27.11. 1905. The decree-holder applied for execution against all the defendants on 21.12.1905. Subsequently, a fresh decree was passed on the merits against that defendant on 15.8.1902. The appeal preferred by her from that decree was dismissed by the High Court on 16.11.1904 and the decree was made absolute on 27.11. 1905. The decree-holder applied for execution against all the defendants on 21.12.1905. The other defendants objected to the execution contending that they were no parties to the decrees of 15.8.1902 and 27.11.1905 and that the decree of 25.8.1900 and 21.12.1901 were barred by limitation. The Privy Council held that, for purposes of limitation, time began to run against all the defendants only from 27.11.1905. This decision, however, turned on the interpretation of Art. 179 of the Limitation Act of 1877, corresponding to Art. 182 of Act IX of 1908. The question that arises for decision in the present case was not considered by Their Lordships in that case. In interpreting Art. 182 of the Limitation Act (Act IX of 1908) the Privy Council subsequently held in Nagendranath Dey v. Suresh Chandra Dey (60 Calcutta 1) that where there has been an appeal in the case the period of limitation for execution of the decree under Art. 182 will run against all parties to the suit from the date of the appellate decree even though the appeal related only to a portion of the decree of the trial court or was by only one of the many parties. That does not mean that the decree of the appellate Court would bind persons who were not parties to the appeal. 12. Another case cited by learned counsel for the appellant is Samodh Thar Dube v. Bhuladhar Dube (5 I.C. 284). There also the question that was considered was one of the limitation. Even on the question of limitation a different view was taken in Umesh Chandra Roy v. Bakrur Chandra Sikdar (46 Calcutta 25). In that case a joint decree was passed exparte against three defendants on 23.12.1908. On the application of the third defendant, the decree was set aside as against him. No notice of the application of the re-hearing of the suit was given to the other defendants. The suit was subsequently dismissed against the third defendant, and a decree was passed against defendants 1 and 2 on 26.9.1913. On the application of the third defendant, the decree was set aside as against him. No notice of the application of the re-hearing of the suit was given to the other defendants. The suit was subsequently dismissed against the third defendant, and a decree was passed against defendants 1 and 2 on 26.9.1913. When the decree-holder applied for execution of the decree against defendants 1 and 2 on 1.7.1916 it was contended by them that execution was barred by limitation. It was held that the decree dated 26.11.1913, in so far as it purported to be one passed against defendants 1 and 2, was a nullity and that the execution petition was barred by limitation. The court, however, proceeded on the basis that the decree against defendants 1 and 2 was not set aside when the application of the third defendant was allowed and that that decree was therefore subsisting. In the circumstances, it cannot be said that this decision also applies to the facts of the present case. The rulings in 26 T.L.J. 319 and 28 T.L.J. 256 apply to this case, and we follow those rulings. 13. In the result, we hold that the second decree passed in the case against the first defendant on 9.12.1119 is a nullity so far as he is concerned and that the amount he is liable to pay is only the one payable under the first decree dated 23.3.1105. 14. We, therefore, confirm the order of the court below and dismiss the appeal with costs.