Judgment Hari Lal Agarwal, J. 1. This appeal is by the decree holder. In the execution that was levied for realisation of the decree for Rs. 6,590.00 against the judgment-debtors, several objections were raised to its executability, namely, (1) minor defendants, being Nos. 4 to 7, 11, 18 and 19, were not . properly represented, (2) one of the defendants, namely, defendant No. 3 Mossomat Bilot Devi, mother of defendants 1 and 2, had already died before the passing of the decree, and (3) the judgment-debtors being Bind by caste and as such members of a backward community within the meaning of Sec. 49 M of the Bihar Tenancy Act, were protected under the said provision and their properties could not be sold. 2. Now I shall state the relevant facts in brief. On 9.3.1959 a sum of Rs. 4,100.00 was borrowed from the plaintiff under a simple mortgage bond executed by defendants 1 and 2. Mortgage Suit No. 32 of 1965 was accordingly filed in the Court of the First Subordinate Judge, Arrah, impleading not only the executants-defendants 1 and 2, but all the members of their family. An ex-pane mortgage decree was passed, as already, indicated above, which was put into the execution when the objections indicated above were taken by the judgment debtors. In the miscellaneous case that was registered on the application under Section 47 read with some other sections of the Code of Civil Procedure, the stand of the decree-holder was that the executing court being bound by the decree could not go behind it and on this simple ground, without going into other discussions, it dismissed the objections of the judgment-debtors. On appeal by them, the Learned Additional District Judge took a contrary view and upheld the objection leaving it open to the executing court to decide as to whether in spite thereof the execution case would proceed or not. 3. Learned Counsel appearing in support of the decree holder-appellant contended that the lower appellate Court had committed serious error of law in holding that on account of the decree having been passed also against a deceased defendant (Mossomat Bilot Devi, defendant No. 8), the decree as a whole was a nullity. 3. Learned Counsel appearing in support of the decree holder-appellant contended that the lower appellate Court had committed serious error of law in holding that on account of the decree having been passed also against a deceased defendant (Mossomat Bilot Devi, defendant No. 8), the decree as a whole was a nullity. On the same lines it was further contended that for the same reasons the non-production of the minors, even assuming for the sake of argument, could only absolve their liability and would not affect the executability of the decree against the other judgment-debtor on whom it was binding. With respect to the protection claimed under Sec. 49 M it was contended that the said provision of the Bihar Tenancy Act was invalid as being ultra vires Article 19(1)(f) of the Constitution of India. 4. I will first take up the effect of the death of defendant No. 8 on the decree. It is, no doubt, true that executing Court has got a very limited jurisdiction to go behind the decree and one of the grounds being, whether the decree is a nullity, inter alia, having been passed against a dead person. In the case of a deceased being the sole defendant or respondent, his death undisputedly renders the whole suit or appeal incompetent on the ground of abatement, but where the deceased is one of the many defendants or respondents the effect of partial abatement on the whole suit or appeal would depend upon the nature of the suit or appeal. If on account of the partial abatement the whole suit or appeal becomes incompetent, then also in a given case the entire decree becomes a nullity, but if the suit or appeal can proceed to a final adjudication in the absence of the legal representatives of the deceased defendant or respondent, the death or, for the matter, abatement of suit or appeal to that extent would not affect the rest of the suit or appeal and a decree passed against the defendants or respondents would be good and operative against them. In short, the acid test would be to see as to whether the suit itself could be instituted and successfully prosecuted without the deceased defendant or, as in the present case, without the minor defendants. In short, the acid test would be to see as to whether the suit itself could be instituted and successfully prosecuted without the deceased defendant or, as in the present case, without the minor defendants. In my view, on the facts stated above it is quite obvious that the plaintiff could have instituted the suit only against defendant 1 and 2, the executants of the mortgage bond, without impleading any other member of their family. They impleaded other members simply as a matter of abundant caution so that no objection could be raised by them at any stage of the proceeding. Once such a view can be taken which, in my view must be taken on the facts of this case, then the entire execution case cannot be thrown away on the ground that the decree under execution was a nullity, having been passed against such a parson. I may refer to an old Bench decision of our own Court in Nathuni Narayan Singh and Ors. V/s. Mahant Arjun Gir and Ors. A.I.R. 1925 Patna 134, where a joint decree was passed against several defendants, but one of them had died before the passing of the decree. On the facts of that case when it was found that the decree being binding on the surviving defendants it was not a nullity as against those defendants but failed only as regards the deceased defendant and his heirs. The executing Court in its order has overruled this objection on the ground that the judgment debtor failed to point out as to whether Mossomat Bilat Devi, who was the mother of the executants, had left any other heirs besides the defendants who were already on the record. The lower appellate Court had proceeded to examine as to whether the decree holders were bound to take steps for substitution and in any view of the matter to satisfy the Court that she died leaving no other heirs than those already on the record. 5. In view of the change in the attitude of the Courts in the matter of abatement and the development of law in this regard, as well as for the reasons given above, it is not possible to uphold the view of the Court of appeal below that the death of defendant No. 8 rendered the entire decree a nullity. 6. In view of the change in the attitude of the Courts in the matter of abatement and the development of law in this regard, as well as for the reasons given above, it is not possible to uphold the view of the Court of appeal below that the death of defendant No. 8 rendered the entire decree a nullity. 6. For the same reasons I do not find any substance in the objection regarding the non-representation of the minor defendants either; since apart from the fact that they were not necessary parties to the suit, their guardians 2. were already there on the record. In their absence the decree cannot be simply said to be rot binding on them in the sense that their estate if any will be not bound by the decree. As was also observed in the case of Ramchandra Singh and Anr. V/s. B. Gopi Krishna Dass and Ors. -- . the minors could simply ignore and disregard the decree but it cannot be said to be null and void against other defendants who were adults and the decree must be held to be executable against them. Had it been a case that the decree was to either stand or fall as a whole, the matter would have been different. 7. Now I come to the protection claimed under Sec. 49 M of the Bihar Tenancy Act which provides certain restrictions on certain class of tenants right under the orders of the court. Clause (a) of Sub-section (1) of Sec. 49 M precludes the courts from passing any decree order for the sale of the right of tenure holder or under raiyat, who is a member of the scheduled caste, scheduled tribe or backward class, in his tenure or tenancy or any portion there of. It also prohibits the sale of any such right in execution of a decree or order, except a decree for arrears of rent in relation to the tenure or tenancy or a decree for dues based on a simple mortgage in respect of tenure or tenancy or a portion thereof as mentioned in proviso to Sub-section (2) of Sec. 49 F. In the Court below the above exception to the protection has, perhaps, not been noticed. In the lower appellate Court, however, argument was made in this regard on the basis of a Full Bench decision of this Court in the case of Bhageran Thakur V/s. Kewal Singh and Ors. 1969 B.L.J.R. 134. where the vires of Sec. 49C of the Act was under consideration. Sec. 49C puts restriction on transfer of tenants right by a protected tenant by private sale, gift etc. and on that basis it was argued that the restrictions under Clause (b) of Sec. 49 M must also be taken to be ultra vires. The lower appellate Court has rightly not accepted this argument. Although Misra C.J. (as he was) who gave the leading judgment in the Full Bench cases, while deciding the constitutionality of Section 49C also casually mentioned that Sec. 49M was also ultra vires. This observation was not subscribed by any of the other Members constituting the Full Bench. In my view, however, this question can also be disposed of on the provisions contained in Clause (b) of Sec. 49 M itself without entering into the complicated question of the vires of this provision. I may refer to the case of Ram Dayal Sahu V/s. Hari Shankar Lal Sahu and Ors. 1967 B.L.J.R. 78. where a somewhat similar provision contained in Sec. 47 of Chotanagpur Tenancy Act was considered and the said provision was held to be ultra vires. 8. As already observed above, Clause (b) of Sec. 49M itself provides an answer to this objection of the judgment debtors. Exceptions have been made to the bar of saleability under this provision with respect to the tenure or tenancy in relation to a decree for arrears of rent and that based upon a simple mortgage. The decree in question is a decree based on a simple mortgage bond and, therefore, the bar of Sec. 49M, even if it is assumed to be valid and legal, does not apply to this case. 9. For the aforesaid reasons, I would allow this appeal and set aside the judgment and decree of the court of appeal below. The appellant would also be entitled to costs. Let the lower court records be sent down at once as the execution proceeding has already been sufficiently delayed. Ram Naresh Thakur, J. 10 I agree.