JUDGMENT : This writ petition is under Article 227 of the Constitution of India, whereby and whereunder the order dated 27.03.2018 passed by Civil Judge (Sr. Division) I, Palamau, at Daltonganj in Misc. Case No.02 of 2014 (arising out of Execution Case No.03 of 2009) and Partition Suit No.21 of 2001, whereby and whereudner the petition filed under Section 47 of the Code of Civil Procedure on the ground that executing court cannot go behind decree of the parties and representative and cannot entertain any objection that the decree was incorrect in law or fact until it was set aside in appropriate proceeding in appeal or revision. 2. The brief facts of the case of the petitioners is that when one partition suit being Partition Suit No.21 of 2001 was filed for passing a preliminary decree in favour of the plaintiff in respect of their half share jointly with respect to the said land as described in Schedule-A and B of the plaint, through a Batwara Commissioner and a separate takhta be carved out in favour of the plaintiff with respect to their half shares out of suit/land as mentioned in Scheule-A and B appended to the plaint. The suit was filed against Dudheshwar Singh, Ballkeshwar Singh, Nand Kishore Singh, Munia Devi and Sukhali Devi for preliminary decree of half shares jointly with respect of suit land. During pendency of the Partition Suit No.21 of 2001 Rampati Mahto died and his legal heirs were substituted. Nand Kishore Singh had also died and his legal heirs were substituted. On being noticed defendant nos.1 to 3 appeared in suit but did not filed written statement. Defendant Nos.4 and 5 did not appear. A decree was passed in the said suit ex-parte against the defendants vide judgment dated 26.03.2004 wherein the plaintiff and defendants have been held to be entitled for half share each in the suit property and directed to prepare preliminary decree. The plaintiffs had filed petition under Order XXVI Rule 13 of the Code of Civil Procedure on 27.05.2004 praying therein to appoint Survey knowing Pleader Commissioner for carving out Takhta as per the preliminary decree and as such the Pleader Commissioner has submitted report on 05.03.2005 and thereafter the final decree was prepared on 09.05.2007. The plaintiffs had filed petition under Order XXVI Rule 13 of the Code of Civil Procedure on 27.05.2004 praying therein to appoint Survey knowing Pleader Commissioner for carving out Takhta as per the preliminary decree and as such the Pleader Commissioner has submitted report on 05.03.2005 and thereafter the final decree was prepared on 09.05.2007. Subsequently an execution case for execution of final decree dated 09.05.2007 for executing the said decree, which was registered as Execution Case No.03 of 2009. 3. It is the case of the petitioner that defendant no.2, Balkeshwar Singh had died on 03.10.2003 but his legal heirs were not substituted in the preliminary decree (sealed and signed on 06.04.2004) and as such preliminary decree as well as final decree since has been passed against the dead person, is nullity in the eye of law. A petition has been filed by the petitioner under Section 47 of the Code of Civil Procedure for not executing the decree passed in Partition Suit No.21 of 2001 since the defendant no.2 has died before passing of the preliminary decree and therefore, the decree being nullity in the eye of law, the same cannot be executed so far as it relates to the legal heirs of defendant no.3 is concerned, it is for the reason that the suit shall be abated and if the decree would be executed the legal heir of defendant no.2 would be said to suffer from violation of principle of natural justice. The trial court having not considered the aforesaid aspect of the matter and rejected the said petition, holding the scope of Section 47 of the Code of Civil Procedure, which is impugned in this writ petition in exercise of power conferred under Article 227 of the Constitution of India. 4. The trial court having not considered the aforesaid aspect of the matter and rejected the said petition, holding the scope of Section 47 of the Code of Civil Procedure, which is impugned in this writ petition in exercise of power conferred under Article 227 of the Constitution of India. 4. Learned counsel for the petitioner has assailed the aforesaid order on the ground that since the defendant no.2 has died on 03.10.2003 while the preliminary decree was passed on 26.03.2004, therefore, he having not been substituted by his legal heir, the suit will abate and if in absence of the legal heir of defendant no.2 preliminary decree has been passed and consequently the final decree, the same would be nullity in the eye of law on the ground that decree/judgment passed against the dead person will be nullity in the eye of law, but having not considered so the executing court is now proceeding for execution of the decree passed by the trial court and, therefore the rejection of petition filed under Section 47 of the Code of Civil Procedure is absolutely improper and illegal. 5. This Court heard learned counsel for the petitioners at length and have gone across the pleading as also the finding recorded therein. 6. This Court before entering into the legality and propriety of the impugned order, thinks it fit and proper to deal with the scope and objection of Section 47 of the Code of Civil Procedure, which reads as under: “47. Questions to be determined by the Court executing decree.- (1) All question arising between the parties to the suit in which the decree was passed, or their representatives, and relating to the execution, discharge or satisfaction of the decree, shall be determined by the Court executing the decree and not by a separate suit. (3) Where a question arises as to whether any person is or is not the representative of a party, such question shall, for the purposes of this section, be determined by the Court. Section 47 of the Code of Civil Procedure confers power upon the executing Court to determine a question if arises between the parties in the suit in which the decree was passed or their representative relating the execution, discharge or satisfaction of the decree, shall be determined by the executing court and not by a separate suit. 7. Section 47 of the Code of Civil Procedure confers power upon the executing Court to determine a question if arises between the parties in the suit in which the decree was passed or their representative relating the execution, discharge or satisfaction of the decree, shall be determined by the executing court and not by a separate suit. 7. Section 47 has been dealt with by the Hon’ble Apex Court in catena of decisions, some of the decision is being referred herein for ready reference. The Hon’ble Apex Court in the case of Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman & Ors. reported in (1970) 1 SCC 670 in essence enunciated that only a decree which is nullity can be subject matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision needs to be referred herein: “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the Court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing Court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.” In the case of Brakewel Automotive Components (India) (P) Ltd. vs. P.R. Selvam Alagappan reported in (2017) 5 SCC 371 wherein their Lordships of the Hon’ble Apex Court while dealing with Section 47 of the CPC have laid down the proposition at paragraph 21 and 22 which is referred hereinabove: “21. As it is, Section 47 of the Code mandates determination by an executing court, questions arising between the parties or their representatives relating to the execution, discharge or satisfaction of the decree and does not contemplate any adjudication beyond the same. A decree of court of law being sacrosanct in nature, the execution thereof ought not to be thwarted on mere asking and on untenable and purported grounds having no bearing on the validity or the executability thereof. 22. Judicial precedents to the effect that the purview of scrutiny under Section 47 of the Code qua a decree is limited to objections to its executability on the ground of jurisdictional infirmity or voidness are plethoric. This Court, amongst others in Vasudev Dhanjibhai Modi v. Rajabhai Abdul Rehman in essence enunciated that only a decree which is a nullity can be the subject-matter of objection under Section 47 of the Code and not one which is erroneous either in law or on facts. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) “6. The following extract from this decision seems apt: (SCC pp. 672-73, paras 6-7) “6. A court executing a decree cannot go behind the decree: between the parties or their representatives it must take the decree according to its tenor, and cannot entertain any objection that the decree was incorrect in law or on facts. Until it is set aside by an appropriate proceeding in appeal or revision, a decree even if it be erroneous is still binding between the parties. 7. When a decree which is a nullity, for instance, where it is passed without bringing the legal representative on the record of a person who was dead at the date of the decree, or against a ruling prince without a certificate, is sought to be executed an objection in that behalf may be raised in a proceeding for execution. Again, when the decree is made by a court which has no inherent jurisdiction to make it, objection as to its validity may be raised in an execution proceeding if the objection appears on the face of the record: where the objection as to the jurisdiction of the court to pass the decree does not appear on the face of the record and requires examination of the questions raised and decided at the trial or which could have been but have not been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction.” It is thus evident from the judgment referred hereinabove that the purview of scrutiny under Section 47 of the Code qua a decree is limited but objections to its executability on the ground of essential infirmity or voidness and plethoric. The Court executing a decree cannot go behind the decree until it is set aside in an appropriate proceeding in appeal or revision, a decree even if it be decree or erroneous is still binding upon the parties. However, a decree is nullity when it is passed without bringing the legal representatives on the record of a person who was dead at the date of decree or against a ruling prince without a certificate is sought to be executed. An objection in that behalf may be raised in a proceeding for execution. However, a decree is nullity when it is passed without bringing the legal representatives on the record of a person who was dead at the date of decree or against a ruling prince without a certificate is sought to be executed. An objection in that behalf may be raised in a proceeding for execution. Again when the decree is made by a court which has no inherent jurisdiction to make it, objection to its validity may be in an execution proceeding if an objection appears on the face of record where the objection is as to whether the jurisdiction of the Court to pass a decree does not appear on the face of record and requires examination of the questions raised and decided at the trial for which could have been but having been raised, the executing court will have no jurisdiction to entertain an objection as to the validity of the decree even on the ground of absence of jurisdiction. The Hon’ble Apex Court in another case of Dhurandhar Prasad Singh vs. Jai Prakash University and Ors. reported in (2001) 6 SCC 534 laid down therein that the exercise of power under Section 47 of the Code is microscopic and lies in a very narrow inspection hole. Thus it is plain that the executing court can allow objection under Section 47 of the Code to the executability of the decree if it is found that the same is void ab initio and a nullity, apart from the ground that the decree is not capable of execution under law either because the same was passed in ignorance of such a provision of law or the law was promulgated making a decree inexecutable after its passing. So far as the issue which has been raised by the petitioner regarding the order passed against a dead person being void is concerned, the same is founded on the principle of natural justice, wherein no persons can be condemned unheard, as to whether the order passed in favour of a dead person would be void. So far as the issue which has been raised by the petitioner regarding the order passed against a dead person being void is concerned, the same is founded on the principle of natural justice, wherein no persons can be condemned unheard, as to whether the order passed in favour of a dead person would be void. The effect of death has been dealt with in the provision of Order XXII of the CPC which inter alia deals with death, marriage and insolvency of a party; the fundamental principle as contained in Rule 1 provides that the death of a plaintiff or a defendant shall not cast the suit to abate if the right sue survives on account of provisions contained in Order XXII Rule 3 and 4 of the CPC that on death of a party if the legal representatives are not brought on record, the proceeding can abate, in that view of the matter the applicability of provisions of Order XXII is sine qua non for alleging abatement on account of death. 8. The question of abatement fell for consideration before the Hon’ble Apex Court in the case of N. Jayaram Reddi and another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool reported in AIR 1979 SC 1393 wherein paragraph 5, 6 and 7 are relevant for the purpose which reads as under: “5. But even if it were assumed that the government appeal deserved to be dismissed as a whole because of its abatement against the deceased respondent, there is no justification for Mr. Sen's further argument that the High Court's decree dated February 4, 1969, was a nullity merely because it was passed against a dead person, namely, Y. Prabhakar Reddy. It has to be appreciated that a decree against a dead person is not necessarily a nullity for all purposes. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned unheard. It will be sufficient to say that such a decree has been held to be a nullity because it cannot be executed against his legal representative for the simple reason that he did not have a full opportunity of being heard in respect of it, and the legal representative cannot be condemned unheard. So if a respondent to an appeal dies, and the appeal abates because of the failure his legal representative on the record within the time limited by law, and the appellate court loses sight of that development or ignores it, will still be permissible for the court hearing the appeal to bring his legal representative on the record on an application to that effect and to examine any application that may be made for condonation of the delay. It is also permissible, and is in fact the common practice, to remand the case for disposal according to law to the court in which it was pending at the time of the death of the deceased party. The law has therefore provided, and accepted, modes for reopening and hearing the appeal in such cases. 6. The basic fact remains that a decree against a dead person is treated as a nullity because it cannot be allowed to operate against his legal representative when he was never brought on the record to defend the case. Any other view would not be possible or permissible for it would fasten on him a liability for which he did not have any hearing. So while that law treats such a decree as a nullity qua the legal representative of the deceased defendant or respondent, there is nothing to prevent him from deciding that he will not treat the decree as a nullity, but will abide by it as it stands, or as it may be modified thereafter on appeal. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. If a legal representative adopts that alternative or course of action, it cannot possibly be said that his option to be governed by the decree is against the law or any concept of public policy or purpose, or the public morality. It is thus a matter entirely at the discretion of the legal representative of a deceased respondent against whom a decree has been passed after his death to decide whether he will raise the question that the decree has become a nullity, at the appropriate time, namely, during the course of the hearing of any appeal that may be filed by the other party, or to abandon that obvious technical objection and fight the appeal on the merits. He may do so either because of his faith in the strength of his case on the merits, or because of incorrect legal advice, or for the reason that he may not like to rely on a mere technical plea, or because in the case of cross-appeals, he may have the impression that bringing the legal representative of the deceased respondent on record in an appeal by a co-appellant will ensure for the benefit of or be sufficient for purposes of the cross-appeal. An abandonment of a technical plea of abatement and the consequential dismissal of the appeal, is therefore a matter at the discretion of the legal representative of the deceased respondent and there is no justification for the argument to the contrary. It is equally futile to argue that an appellate court is denuded of its jurisdiction to hear an appeal in which one of the respondents has died and the right to sue does not survive against the surviving defendant or defendants alone merely because no application has been made to bring his legal representative on the record when no objection to that effect is raised by anyone. 7. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it willfully. 7. But, as is equally obvious, it will not be fair to draw an inference as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased respondent was aware of it and abandoned it willfully. The following facts have been well established in this respect in the present case.” Therefore the ratio of the decision rendered by the Hon’ble Apex Court reported in AIR 1979 SC 1393 reflects that a decree against a dead person becomes a nullity only because the decree cannot be enforce against the heirs of the deceased who are not parties. Such a decree however, is not void or voidable at instance of the heirs of the deceased party against whom decree has been passed. Therefore, it is very much clear that before coming to a finding that the decree is nullity it is to be seen that there must be sufficient and satisfactory evidence to prove that the legal representatives of the deceased-respondent was aware of it and abandoned it wilfully. 9. In the backdrop of the legal position, the factual aspect as being reflected from the impugned order is that a partition suit being Partition Suit No.21 of 2001 has been filed by one Rampati Mahto and his two sons namely Sheo Dayal Singh and Nand Kumar Singh against Dudheshwar Singh-defendant no.1, Ballkeshwar Singh-defendant no.2, Nand Kishore Singh-defendant no.3 and two daughters namely Munia Devi-defendant no.4 and Sukhali Devi-defendant no.5 for preliminary decree of half share in the suit land. After issuance of notice, defendants have appeared and filed their written statement but ignored their presence in the suit and therefore, the suit was taken up for ex-parte hearing and was disposed of by the judgment and decree dated 26.03.2004, against which an appeal has been preferred being P.A. No.15 of 2004 before the District Judge, Palamau which was dismissed on 02.11.2006 and then a Batwara Commissioner was appointed by the court who submitted his report which came to be confirmed by the court on 15.07.2005 as no objection filed by the parties against the report of the Batwara Commissioner. No appeal was preferred by the defendants against the final decree and then the execution case was started on the petition of the plaintiffs, the decree holder in which the Khutagarhi report has been submitted by the survey knowing Batwara Commissioner in the court within the knowledge of the defendant/judgment debtors and on the fag end of the case the petition under Section 47 of the CPC has been filed. The further fact of the case is that during pendency of the suit, the original plaintiff no.1- Rampati Singh has died and his two daughters came to be substituted in his place as plaintiffs 1 and 1(a) Ramashish Singh, Bashisth Singh @ Sunil Kumar Singh son of Balkeshwar Singh filed partition appeal being Partition Appeal No.15 of 2004 before the District Judge, Palamau for setting aside the ex parte decree but after filing the same they left their pairvi in the said appeal subsequently been dismissed on 02.11.2006 and thereafter Nand Kishore Singh and Dudheshwar Singh-defendant no. 3 and 1 respectively have filed one Misc. Case No.09 of 2004 for setting aside the ex parte decree passed in Partition Suit No.21 of 2001 which was also rejected then Ramashish Singh son of defendant no.1-late Balkeshwar Singh has filed partition appeal being P.A. No.15 of 2004 which came to be dismissed. The partition appeal being P.A. No.15 of 2004 has been filed by two sons and widow of late Balkeshwar Singh only, defendant no.1 Dudheshwar Singh and defendant no.3 have not preferred appeal. Defendant no.1- Dudheshwar Singh and Defendant no.2 Nand Kishore Singh have not filed petition regarding the death of Balkeshwar Singh and as such the plaintiffs had no knowledge of the death of Balkeshwar Singh, therefore, no such petition for substitution of the heirs of Balkeshwar Singh has been filed. Defendant no.1- Dudheshwar Singh and Defendant no.2 Nand Kishore Singh have not filed petition regarding the death of Balkeshwar Singh and as such the plaintiffs had no knowledge of the death of Balkeshwar Singh, therefore, no such petition for substitution of the heirs of Balkeshwar Singh has been filed. In view of such factual aspect it is thus evident that the ground has been raised in a petition under Section 47 which is the subject matter of the present writ petition that after death of Balkeshwar Singh, in course of pendency of the trial the decree would be nullity, so far as it relates to Balkeshwar Singh and as such it is now to be examined as to whether in this fact and circumstances, can it be said that the decree is held to be nullity as because the legal heirs namely the two sons and widow of Balkeshwar Singh i.e. Ramashish Singh and Bashisth Singh and Deomaniya Kuar who is late wife of Balkeshwar Singh and it cannot be said that they were not aware with the pendency of the suit or decree passed therein rather they have preferred partition appeal being P.A. No.15 of 2004 but lost and then they sat idle fairly for a period of about nine years and when the final decree has been passed then the petition under Section 47 of the Code of Civil Procedure has been filed. 10. In view of the said factual aspect, the question of nullity of the decree against late Balkeshwar Singh cannot be said to be a nullity in the eye o law. 10. In view of the said factual aspect, the question of nullity of the decree against late Balkeshwar Singh cannot be said to be a nullity in the eye o law. It is for two reasons namely (1) that the decree would be said to be nullity as has been held by the Hon’ble Apex Court in the decision reported in AIR 1979 SC 1393 (N. Jayaram Reddi and another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool) wherein the inference can be drawn as to the abandonment of such a plea of abatement unless there is clear, sufficient and satisfactory evidence to prove that the legal representative of the deceased-respondent was aware of it and abandoned it willfully, therefore, the said ratio is applicable herein also in the facts and circumstances as because the legal heirs of the defendant no.2 namely Ramashish Singh, Bashisth Singh and Deomaniya Kuar were aware of it and abandoned it willfully and as such the decree will not be said to nullity so far as it relates against late Balkeshwar Singh. 11. As has been held by the Hon’ble Apex Court, so far as applicability of Section 47 of the Code of Civil Procedure, the same is to be exercised by the executing court for executing the decree which is binding upon the parties having a microscopic jurisdiction and the executing court is supposed to execute decree as per the tenure of the decree, however the question of nullity of a decree if passed against a dead person can also be considered but subject to the condition as has been held by the Hon’ble Apex Court reported in AIR 1979 SC 1393 (N. Jayaram Reddi and another vs. Revenue Divisional Officer and Land Acquisition Officer, Kurnool). The trial court after looking to the aforesaid aspect of the matter and discussing the scope of Section 47 of the Code has come to the conclusion/finding that the case as has been made out under Section 47 of the Code is not to be exercised. 12. The trial court after looking to the aforesaid aspect of the matter and discussing the scope of Section 47 of the Code has come to the conclusion/finding that the case as has been made out under Section 47 of the Code is not to be exercised. 12. This Court is also in agreement with the said finding, considering the aforesaid aspect of the matter as also gathering the fact that the petition under Section 47 is nothing but to circumvent the decree passed by the trial court, otherwise the petitioner would have approached the appropriate court of law at the relevant time since herein legal heirs of the deceased-defendant namely Balkeshwar Singh has filed partition appeal in the year 2004 which was dismissed on 02.11.2006 and thereafter allowed the trial court to proceed by appointing Batwara Commissioner, who has submitted its report on 15.07.2005 but no objection has been filed and thereafter sat idle and after lapse of after nine years the petition under Section 47 has been filed by the other legal representative of the said Balkeshwar Singh, therefore, plea of declaring the decree as nullity passed against the Balkeshwar Singh cannot be said to be proper. 13. In view of the entirety of the facts and circumstances of the case, according to the considered view of this Court, the order impugned dated 27.03.2018 having no infirmity warranting no interference under Article 227 of the Constitution of India, therefore, the writ petition fails and is accordingly dismissed.