Judgment :- 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. 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 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 correctness or legality of a decree, it can entertain the objection that it is a nullity because the Court which passed the decree had no jurisdiction to pass it see notes to S.38 under the heading "Power of Execution Court". A further question which is not settled is whether a suit raising the question of nullity of a decree is barred by this section. There is considerable authority in support of the view that it is. (Shivaji v. Vital 28 Bombay L. R.1367) The ratio of these Sections is that a party to a decree has not merely the right to raise the objection of nullity of a decree in execution proceedings but it is bound to do so, and that in consequence an order for execution operates constructively as res judicata. The bar to a separate suit would, in this view, arise not under S.47, but under S.11, on the ground that the plea of nullity is one which a party not merely might but ought to put forward in execution proceedings.". In the light of these authorities, I do not think it was open to the plaintiff to have filed the suit. 8. Even otherwise, the evidence in the case is clear that Kochu Kali died after the filing of the suit. The evidence given by pw. 1, pw. 2 and pw. 3 was rightly disbelieved by the lower appellate court for the. reason that they had no opportunity of knowing whether Kochu Kali died in Vrischigom 1114 or not. pw. 1 is the Secretary of the Karayogam and he proves Ext. P-1. Ext. P-1 is a receipt for of "Pulakuli Sambhavana". The evidence given by pw. 1, pw. 2 and pw. 3 was rightly disbelieved by the lower appellate court for the. reason that they had no opportunity of knowing whether Kochu Kali died in Vrischigom 1114 or not. pw. 1 is the Secretary of the Karayogam and he proves Ext. P-1. Ext. P-1 is a receipt for of "Pulakuli Sambhavana". Pw.1 said that the receipt is for payment of "Pulakuli Sambhavana" in connection with the death of Kochu Kali. Ext. P-1 is dated 3-5-1114. It does not mention that the payment was in connection with the death of Kochukali. pw.1 was disbelieved by the lower appellate court. pw. 2 is the Purchit, who conducted the burial ceremonies of Kochu Kali. Ext. P-1 receipt was issued to him and he handed over it to the plaintiff. The lower appellate court disbelieved the evidence of this witness also. The plaintiff as pw. 4 has sworn that the money was paid by one Padmanabhan to the Karayogam. Padmanabhan has not been examined in this case. I am not inclined to believe the testimony of the plaintiff. The summons in the case has not been produced. It is quite probable that if Kochukali was dead on the date of the suit, the summons would have been returned with an endorsement to that effect and the court would not have passed a decree. In the circumstances therefore I think the lower appellate court was right in its conclusion. I dismiss the appeal with costs. Dismissed.