1. This is an appeal on behalf of the judgment-debtoragainst an order by which execution has been allowed to proceed. There is nocontroversy as to the circumstances under which the Appellant, an infant,resists execution of the decree. The Plaintiff sued for declaration of title,for confirmation of possession and for a permanent injunction to restrain theDefendants from interfering with his possession. The Subordinate Judge made aconditional decree in favour of the Plaintiff for recovery of possession uponpayment of a specified sum. The principal Defendants against whom the decreewas made were the present Appellant, an infant, represented by his mother, andalso his father. Against the decree, the infant alone appealed to this Court. Whenthe appeal came to be heard, it was argued on his behalf that the decreeagainst him ought to be discharged, because he had been re presented in thesuit by his mother, a married woman, in contravention of the provisions of sec.457 of the Code of Civil Procedure of 1882, as explained in Kali Shankar v.Maharaja Pratap Udai Nath 6 C. L. J. 36 (1907). To this objection, the reply onbehalf of the Plaintiff-Respondent was that if it was well-founded, the logicalinference was that the appeal itself was incompetent because it had beenpresented on behalf of the infant by his mother. The Appellant accepted thisposition and the appeal was dismissed on the ground that it had been preferredon behalf of the minor by a person not competent to represent him. Upon dismissalof the appeal, the decree-holder applied to execute the decree. It was thenobjected on behalf of the infant by his mother that the decree could not beexecuted against him because there was no valid decree against him. The DeputyCommissioner has overruled this objection on the ground that the question ofthe validity of the decree could not be examined in execution proceedings undersec. 47 of the Code of 1908. In this view, the Court below has overruled theobjection and directed execution to proceed. The infant has now appealed tothis Court represented by his mother, and on his behalf, it has been arguedthat the Court below ought to have held that the decree is not binding upon theinfant and cannot be executed against him. In our opinion, the contention isobviously unsustainable in execution proceeding. The learned Vakil for theAppellant has appreciated the difficulty of his position, because if hiscontention is well-founded, the infant is not a party to the suit, and thequestion raised does not fall within the scope of sec. 47, which authorizes aCourt of execution to deal only with questions which arise between the partiesto the suit in which the decree was made or their representatives. Consequentlythe order of the Court below is, in this view, not a decree and the appeal isincompetent. But he has argued that as the order of the Court below purports tohave been made under sec. 47, it must be taken to be a decree and appeal ableas such. In support of this proposition reliance has been placed upon the casesof Hurrish Chandra v. Kali Sundari L. R. 10 I. A. 4 : s. c. I. L. R. 9 CaL 482(1882), Abdul Rahiman v. Ganapati I. L. R. 23 Mad. 517 (1900) Latchmanan v.Ramanathan I. L. R. 28 Mad. 127 (1904) and Bickett v. Morris L. R. 1 Sc. &Div. 47 (53) (1866) to show that when jurisdiction has been usurped by a Courtan appeal against its order cannot be successfully defeated on the ground thatthe order has been made without jurisdiction, in other words, that a party whohas induced a Court to act without jurisdiction cannot be permitted, when thevalidity of the order made for his benefit is challenged by way of appeal, totake up an inconsistent position and to defeat the appeal by proof that theorder was made without jurisdiction. In our opinion, there is considerableforce in this contention and the present appeal must be treated as competent.Indeed, the Respondent has not argued that the appeal is incompetent, becausehis position here as in the Court below has consistently been that the decreebinds the infant and may be executed against him.

2. As regards the merits of this appeal, it has been arguedthat it is not open to the decree-holder to contend that the infant wasproperly represented in the suit, because to allow him to do so would be topermit him to take up a position inconsistent with that assumed by him when theappeal against the original decree was heard. In our opinion, this is not anaccurate statement of the actual position. When the appeal against the originaldecree was heard, the Respondent did not take exception to the competency ofthe appeal; it was the Appellant who made a bold effort to assume a positioncontradictory to that adopted by him in the original Court, where no suggestionhad been made that the infant was not properly represented. To this argument ofthe Appellant, the Respondent appropriately replied that it necessarily tendedto destroy his appeal. The Appellant voluntarily assumed that portion andpractically invited the Court to dismiss his appeal as incompetent. It isdifficult to appreciate how, under these circumstances, the decree-holder canbe charged with inconsistency, or how it can be seriously maintained that asbetween him and the infant judgment-debtor, it has been conclusively establishedthat the decree does not bind the latter. Nothing that happened in this Courtwhen the appeal against the original decree was heard can possibly support thisconclusion. The doctrine that a party litigant cannot be permitted to assumeinconsistent positions in Court to the detriment of his opponent is firmlysettled and has been repeatedly applied. [Gandy v. Gandy 30 Ch.; D. 57 (82)(1885) Sir Chandra v. Bansidhar 3 B. L. R. 214 (1869)., Brijbhoohun v. Mohadeo17 W. 11. 421 (1872) Efatoonnissa v. Khondkar Khoda 21 W. R. 374 (1874)Sonaoolla v. Imamooddin 24 W. R. 273 (1875), Dabee v. Mungar 2 C. L. R.208(1878), Sutyabhama v. Krishna I.L. R. 6 Cal. 55 (1880) Bhaja v. Chuni Lal 5C. L. J. 95 (105) (1906). Manindra v. cretary of State 5 C. L. J. 148 (169) (1907).Broom on Legal Maxims 132]. But this principle cannot be applied to theprejudice of the present Respondent.

3. The only question which now requires consideration is,whether it was open to the Court below to investigate the validity of thedecree and its binding character in so far as the infant is concerned. That itwas not competent to the Court below, as an execution Court, to embark uponsuch an enquiry is, in our opinion, beyond the pale of controversy. It iselementary doctrine that an execution Court when called upon to execute thedecree must proceed on the assumption that there is a valid decree capable ofexecution. The party who seeks to attack the decree must do so in a separateproceeding, for example by a suit or an appeal or an application for review. Ifany authority is needed for a proposition of this character, it is sufficientto refer to the decision of the Judicial Committee in Rashidunnisa v. MuhammadIs mail L. R. 36 I. A. 168: s. c. I. L. R. 31 All. 672; 13 C. W. N. 1182 (1909)and the case of Khiarajmal v. Diam L. R. 32 I. A. 23 : s. c. 9 C. W. N. 201; I.L. R. 32 Cal. 296 (1904) tends to support the same conclusion. The Court belowadopted an obviously right course when it declined to consider the validity ofthe decree.

4. As a last resort, the learned Vakil for the Appellant hasasked for permission to treat the petition of objection in the executionproceedings under sec. 47 of the Code of 1908 as a plaint in a suit fordeclaration that the decree was not operative against the infant. In thecircumstances of this case, we do not think that this application should begranted. The petition of objection requires considerable modification before itcan be treated as an appropriate plaint in a declaratory suit. Besides noquestion of limitation can arise as the Appellant is still an infant. It willtherefore be obviously more satisfactory if a separate suit to test thevalidity of the decree is instituted by the infant upon a plaint properly drawnup for the purpose. But to guard against any possible injury to the infant byreason of an execution against him before the proposed suit is instituted weshall direct a stay of execution for a limited time. The result, therefore, isthat the order of the Court below must be affirmed and this appeal dismissedwith costs. We assess the hearing fee at 5 gold mohurs. We further direct thatthe execution be stayed till the 50th November next.

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Moharaj Kumar Bindeswari Charan Singh vs. Thakur Lakpat Nath Singh (05.09.1910 - CALHC)