Ghose and Panton, JJ.:— The defendant is the appellant before us and the facts which have given rise to this appeal, shortly stated, are as follows. On the 17th April, 1913, the plaintiffs obtained a preliminary decree in a mortgage suit for Rs. 1,08,964-9-5 against the defendant in the Court of the Subordinate Judge of Bankura. An appeal was carried against the said decree to this Court, being appeal No. 39 of 1914 by the defendant, Raja Mahendra Lal Singh Deo. This appeal came on for hearing before Mr. Justice Fletcher and Mr. Justice Shams-ul-Huda on the 10th January, 1918, when a petition was put in on behalf of both parties to the effect that it had been agreed between the parties that the plaintiffs would get a decree for Rs. 70,000 inclusive of all costs and interest up to the said date, and that the said amount would be paid by the defendant, Raja Mahendra Lal Singh Deo, within two years therefrom with interest at the rate of Rs. 4-8 per cent. per annum till realization, and that in default of payment within the said period of two years, the said amount of Rs. 70,000 with interest at the said rate till realization would be realized by the sale of the properties mentioned in the plaint. Thereupon it was ordered that the said petition should be filed as of record and that the defendant and the plaintiffs should give effect to and be bound by the terms thereof. The plaintiffs were not paid any portion of the moneys due to them under the decree of this Court dated the 10th January, 1918, within two years from that date, but it appears that one of the plaintiffs, Prayag Chandra Dutt, died on the 26th Jaistha, 1326 B.S, corresponding with the 9th June, 1919, leaving him surviving his sons, Radha Raman Dutt, Sham Sundar Dutt and Jalad Baran Dutt, as his heirs and legal representatives and that the defendant Raja Mahendra Lal Singh Deo died on the 3rd December, 1920, leaving him surviving his son Hemendra Lal Singh Deo as his heir and legal representative. On the 3rd June, 1921, the plaintiffs applied for an order for the substitution on the record of the heirs of the deceased plaintiff and of the heir of the deceased defendant. The heir of the deceased defendant, who was sought to be substituted on the record, opposed the application on the ground that it was barred by limitation, but on the 20th of July, 1921, the learned Subordinate Judge by his order of that date held that, having regard to the terms of the decree of this Court, which finally disposed of the suit instituted by the plaintiffs, there was no pending suit in which the application for substitution of the heirs of the deceased plaintiff and of the heir of the deceased defendant was entertainable. The learned Subordinate Judge further held that the plaintiffs might execute the decree by making proper substitution in an application for execution of the decree. Thereupon the plaintiffs applied for execution of the decree in question and it was ordered on that application that after the necessary substitutions had been made notices should issue under Order XXI. rule 22, of the Code of Civil Procedure.
Against the last-mentioned order the appeal No. 222 has been preferred, while against the order previously referred to, appeal No. 223 has been preferred. There is also a connected rule, being rule No. 539 of 1921, under which further proceedings have been stayed. On behalf of the appellant it has been contended before us that the decree made on the 10th January, 1918, by Mr. Justice Fletcher and Mr. Justice Shams-ul-Huda was in substance and in form a preliminary decree in a mortgage suit and that a final decree had still to be made in the suit before the plaintiffs could realise the moneys due to them by the sale of the properties mentioned in the plaint and that inasmuch as the deceased plaintiff's heirs had not been brought on record within a period of six months from the date of the death (that being the period under the Limitation Act before the last amendment) and the deceased defendant's heir had not been brought on record within three months from the date of the death (that being the period under the present Limitation Act) the plaintiffs' remedies, if any, were barred. It is argued that, assuming that a final decree had to be made, if the heir of the sole judgment-debtor was not brought on the record within the time limited by law, Order XXII, rule 4 of the Code of Civil Procedure applies and the mortgage suit abates and in support thereof reference is made to the case of Bhut Nath Jana v. Shashi Bhusan Jana . Our attention has also been invited to the case of Dakoju Subbarayudu…(Counter-Petitioner), v. Musti Ramadasu…(Petitioner), .* as to the effect of the deceased, plaintiff's heirs not having been brought on the record within the time limited by law. It is further argued that if the application of the 3rd June, 1921, referred to above, is treated as an application for execution of the decree, then time ran from the date of the decree made by this Court and not from the expiration of two years from that date and in support thereof the judgment of their Lordships of the Judicial Committee in the case of Sachindra Nath Roy v. Maharaj Bahadur Singh was referred to, the contention being that the application was barred under the three years' rule. A further point was taken on behalf of the appellant that, having regard to the language of section 45 of the Indian Contract Act, one plaintiff having died and his heirs not having been substituted, the entire suit had abated. On behalf of the respondent it has been argued that the decree made by this Court on the 10th January, 1918, was in no sense a preliminary decree in a mortgage suit as contemplated by Order XXXIV, rule 4, of the Code of Civil Procedure; it was in no sense a conditional decree and that the rule that the decree-holder in a mortgage suit ought not to be ordinarily allowed without previous notice to the judgment-debtor to take out execution on the allegation that the condition or contingency has been fulfilled was excluded in this case by the consent of the parties. It was further contended that having regard to the terms of the compromise decree and having regard to the provisions of Order XXII, rule 12, C.P.C, it was unnecessary in execution proceedings to apply for substitution of the heirs of the deceased plaintiff and of the deceased defendant and that it was open to the plaintiffs to proceed to levy execution immediately on the expiration of two years from the date of the compromise decree.
The question really depends upon the view which may be taken of the nature of the decree made by this Court on the 10th January, 1918. If it was merely a preliminary decree in a mortgage suit, then obviously it follows that before execution could be levied, an order under Order XXXIY, rule 5, C.P.C, making the preliminary decree final had to be obtained and in that view of the matter the plaintiffs would no doubt be in considerable difficulty, having regard to the events which had happened. If, however, the ingredients of a preliminary decree in a mortgage suit are absent from the compromise decree in this case, if for the consideration of a reduction of interest from 12 per cent. to 4½ per cent. and of the principal and interest from Rs. 1,40,758 to Rs. 70,000 and for the further consideration of an unusual extension of the period of grace from six months to two years for the repayment of the principal and interest due on the mortgage bond, the defendant chose to waive the advantage of the rule of law requiring preliminary decrees to be made final before execution could be levied, then does it lie in the mouth of the present appellant to argue that, without more, the compromise decree is incapable of execution? We are of opinion that the intention of the parties, as far as the same can be gathered from the compromise decree, was that immediately on the expiration of two years from the date of the decree, the plaintiffs would be competent to realize the moneys due to them by the sale of the properties mentioned in the plaint. If that is so, it follows that under the provisions of Order XXII, rule 12, C.P.C, it was unnecessary to apply in the suit, which had come to an end, for substitution of the heirs of the plaintiff and of the deceased defendant and we think that the orders passed by the Subordinate Judge on the 20th July, 1921, allowing the execution to proceed cannot be seriously objected to. In this view of the matter, it becomes unnecessary for us to discuss at any length the questions raised in the elaborate argument on behalf of the appellant. We will content ourselves by remarking that in the special circumstances of this case the question of limitation in the form in which it was raised in the case of Sachindra Nath Roy has no application.
The result, therefore, is that these appeals fail and must be dismissed with costs, which we assess at 5 gold mohurs in each appeal.
The Rule also fails and is accordingly discharged.
The records will be returned to the lower Court without delay.
S.M
Appeals dismissed.