Mitter, J.:— The question of law, which arises for consideration in this appeal, is as to whether, on the death of one of two mortgagees, after they had obtained a preliminary decree for sale of the mortgage property, the suit abates, if the heirs of the deceased mortgagee are not brought on record of the suit within the time limited by law. The appellants, who are the surviving mortgagees and the heirs of the deceased mortgagee, contend that the suit does not abate, whereas the mortgagors, now respondents, contend that the suit has abated. The lower appellate court has accepted the contention of the respondents and has dismissed the plaintiffs' suit.
The appellants contend that the view taken by the lower appellate court is erroneous, as Order XXII, rule 3 of the Code of Civil Procedure does not apply, where a plaintiff, in a mortgage suit, dies after the preliminary and before the final decree; on the other hand, the respondents contend that Order XXII, rule 3 applies, as, under the Code of 1908, proceedings, after the preliminary decree, are not proceedings in execution and that the suit continues until the final decree is passed.
It seems, to us that the contention of, the appellants must prevail, for, as has been recently pointed out by their Lordships of the Judicial Committee of the Privy Council, that after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. In the case of Lachmi Narain Marwari v. Balmakund Marwari, Lord Phillimore, in delivering the judgment of their Lordships said:—“The parties have on the making of the decree acquired rights or incurred liability which are fixed unless or until the decree is varied or set aside. After a decree any party can apply to have it enforced.” Although these observations were made in a case, where, after a preliminary decree for partition, the plaintiff did not appear when the case came on for final decree and the case was struck off, the same principle should apply to a case where as in the present, a man did not appear, because he could not appear, as he was then dead. The question which arises for decision in the present case arose directly for decision before a Full Bench of the Madras High Court in the case of Perumal Pillay v. Perumal Chetty. In that case, Sir Murray Courts Trotter, Chief Justice, held that Order XXII, rules 3 and 4 did not apply to circumstances such as exist in the present case. We are in entire agreement with that decision and with the reasons on which the Full Bench rested their judgments.
The Allahabad High Court, we may observe, has also taken the same view as the Madras Full Bench. See Ali Bahadur Beg v. Rafi-ulla. It remains to notice two cases of our own Court, which take the view that the provisions of Order XXII, rule 4 apply both before and after the passing of the preliminary decree. See Bhutnath Jana v. Tara Chand Jana and Manujendra Butt Chowdhury v. Jnan Ranjan Somaddar. We do not think that these decisions can be held to be good law in view of the observations made by the Judicial Committee in Lachmi Narain's case to which reference has already been made. For the reasons given above, we hold that the decision of the lower appellate court, dismissing plaintiffs' suit, must be set a side and the judgment of the court of first instance restored with costs throughout. The court, of first instance granted a decree in favour of the plaintiffs except the heirs of Alam Gazi for 14⅔ annas share of the mortgage money and, as the plaintiffs did not appeal to the lower appellate court and were content with the decree of the first court, they can not have a decree for their whole claim.
Jack, J.:— I agree.
Appeal allowed.
A.A