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Judgment
Pakenham Walsh, J.—I see no reason why the court should refuse restitution. The decree was admittedly a nullity, the suit having been
instituted against a dead man. The Civil Procedure rules are not applicable against dead persons as remarked in Debi Bakhsh Singh v. Habib Shah
19 Ind. Cas. 526 : 35 A. 331 : 17 C.W.N. 829. 11 A.L.J. 625 : 18 C.L.J. 9 : 15 Bom. L.R. 640 : 14 M.L.T. 33 : (1913) M.W.N. 566 : 25
M.L.J. 118 : 16 O.C. 194 : 40 I.A. 150 . The court having levied execution when there was no decree has inherent power to rectify its own
mistake u/s 151 of the Code of Civil Procedure. Vide also remarks in Sudalaimuthu Pillai and Others Vs. Sudalaimuthu Pillai and Others, . I do not
propose to go into the academic question whether the petitioners can get a decree, which is a nullity, set aside or not because the only real question
is whether he can get restitution of money paid to execution of what was not a decree. I have no doubt that he can.
The order will be that the money wrongfully paid to the respondents by the petitioners must be refunded with interest at 6 per cent. (per annum)
from date of collection, viz., January 21, 1928, till date of restitution.
Petitioners will be allowed costs of this petition.