Manohar Lall, J.:— This application by the plaintiffs arises out of a partition suit. The question for consideration is whether after a preliminary decree for partition has been passed, the court is justified in refusing to vacate the final order which was passed in the absence of a defendant, who had died since the date of the preliminary decree.

The facts are these. The plaintiffs instituted a, partition suit no. 13 of 1939 against a number of defendants including Ramratan Sahu, defendant no. 4, and Jangal Sahu, defendant no. 5. The preliminary decree was passed on the 2nd April, 1940, and a pleader commissioner was appointed to effect partition and make allotments. As no objection was made by any of the parties to the report of the Commissioner, the court passed a final decree on the 24th of June, 1941. Subsequently defendant no. 4, Ramratan Sahu, appeared and filed an objection that the final decree should be set aside, and by an order dated the 20th of June, 1942, the final decree was vacated as the court was satisfied that defendant no. 4 had not been given sufficient opportunity to file his objections. During the hearing of that miscellaneous case, it transpired that Jangal Sahu, defendant no. 5, the brother of Ramratan Sahu, had died after the passing of the preliminary decree, but no steps had been taken to bring his heirs upon the record. The court therefore when vacating the final decree directed that the heirs of deceased defendant no. 5 should be brought on the record by the 1st of July, 1942. As no steps were taken on that date for substituting the heirs of Jangal Sahu, the court ordered that

“the suit would abate as regards the deceased defendant no. 5, Jangal Sahu”,

and the suit was adjourned to the 20th of July, 1942, for filing objections, if any, against the allotment report of the Commissioner. Defendant no. 4 who had been given an opportunity, did not file any objections, but the plaintiffs filed a petition on the 10th of July, 1942, that the abatement order may be vacated. On the date fixed for hearing of this application, defendant no. 4 filed an objection that the plaintiff's application to vacate the abatement order should be refused, but he never filed any objection to the allotment report. The plaintiff owing to the disturbed state of the railway traffic did not appear and take further steps. The case was adjourned, and on the 26th September, 1942, as neither of the parties appeared, the court rejected the plaintiff's application for vacating the, abatement order and passed a final decree, and adjourned the case to the 6th of October, for taking further steps by the parties. The court discovered that on the 26th September, 1942, defendant no. 4 by adopting a clandestine method, put in an objection petition and got it sealed with the court's seal, with the result that it did not entertain the objections of defendant no. 4. A subsequent application by defendant no. 4 to consider his objections was also rejected. On the 8th of October, 1942, the plaintiff field another application under section 5 of the Limitation Act in which he prayed again that the order of the abatement passed on the 1st July, 1942, should be set aside. The Subordinate Judge came to the conclusion that the plaintiff had sufficient time to apply for substitution within the statutory period of 90 days and therefore, refused to give any relief under section 5 of the Limitation Act. As he had already rejected the petition of the plaintiff for setting aside the abate-menu he maintained that order. Defendant no. 4 filed another application on the 13th of February, 1943, contending that unless the final decree was set aside there could be no substitution of the heirs of the deceased defendant and, therefore, prayed that the final decree should be set aside and he should be given an opportunity to file an objection against the allotment report. The court, however, was of the opinion that the defendant and his pleader had been negligent in prosecuting their claims from the very beginning and they had adopted all sorts of practice to get a relief, but the court was not prepared to condone their dilatory and negligent conduct. Accordingly he refused to give relief either to the plaintiff or defendant no. 4 with the result that the court confirmed his previous order by which he had held that the suit abated against the heirs of deceased defendant no. 5 and maintained the final decree which he had passed on the 26th September, 1942. Hence the application in revision to this Court on behalf of the plaintiff.

It is contended on behalf of the petitioner that after the preliminary decree had been passed the court had no jurisdiction to hold that the suit had abated against the heirs of deceased defendant no. 5 and that the whole proceedings after the preliminary decree should be set aside as being null and void, and the plaintiff should be allowed to take steps to have a proper final decree passed in the presence of all the parties. On the other hand, Mr. B.C De appearing on behalf of the opposite party contends that the order of the court was perfectly valid and justified and that it was the plaintiff's own fault that he did not take proper steps within the time allowed.

A number of cases were cited by both sides in support of their respective contentions.

In my opinion the matter has been conclusively decided by the decision of their Lordships in Lachmi Narain Marwari's case. It was pointed out by Lord Phillimore, who delivered the judgment of their Lordships, that after a preliminary partition decree has been made in a suit, the suit cannot be dismissed later on upon, the plaintiff failing to appear on the date appointed by the Subordinate Judge for the matter to be proceeded with unless the decree is reversed, and that it would have been a proper order if the Subordinate Judge in these circumstances had made an order adjourning the proceedings sine die with liberty to the plaintiff to restore the suit to the list on payment of all costs and court-fees, if any thrown away.

In the case of Ranjit Sahi v. Maulavi Qasim in a partition suit the Subordinate Judge had passed a preliminary decree for partition and directed the commissioner to partition the joint lands, but finding that the commissioner had partitioned the lands which were different from the joint lands, dismissed the suit. It was held by a Division Bench of this Court that it was not open to the Court to dismiss the suit.

In the case of Lachmi Narayan Tiwari v. Ramsaran Tiwari after a preliminary decree for partition had been passed the plaintiff did not deposit the commissioner's fees, and on the date fixed his pleader said he had no further instructions. Thereupon the court, in the view that unless a commission was issued the final decree for partition could not be made, dismissed the suit for non-prosecution. It was held by a Division Bench of this Court that the court had no jurisdiction to dismiss the suit after the preliminary decree had been passed. Ross, J. who delivered the judgment of the Bench, referred to the Privy Council decision of Lachmi Narain Marwari and to the case of Ranjit Sahi and came to the conclusion that the Subordinate Judge had no jurisdiction whatsoever to dismiss the suit after the preliminary decree had been passed merely because there was delay in producing the commissioner's fees.

In Must. Bhatia v. Abdus Shakur, a preliminary decree had been passed and thereafter an application had been made to ascertain the mesne profits against the heirs of the sole defendant who had died in the meanwhile. The heirs filed a petition of objection asserting that they could not be proceeded against on that date as Musst. Etwaria had died beyond the period fixed by the statute. As a matter of precaution the plaintiff then applied to have the abatement set aside. Ros's, J. who delivered the judgment of the Bench, held that in these circumstances there could be no question of abatement because the preliminary decree had been passed, and from the principle of the decision of their Lordships in Lachmi Narain's case it followed that there could be no abatement in the case. Reliance was placed before him on the Full Bench decision of this Court in Jungli Lall v. Laddu Ram Marwari. But that case was distinguished by the learned Judge upon the ground” that “there the decree had been passed against a dead man and it is possible that in such a case different considerations might arise; but it was pointed out by a Full Bench of the Madras High Court in Perumal Pillai v. Perumal Chetty which dealt with precisely the same question as is now under consideration, that the authority of a decision of that Court that there was abatement had been very much shaken by the Privy Council decision in Lachmi Narain Marwaris case and consequently it is not clear after that decision of the Privy Council whether the decision of this Court in Jungli Lall v. Laddu Ram Marwri is authoritative. The Full Bench of the Madras High Court held that Order XXII, rules 3 and 4 do not apply to cases of death of parties after the passing of a preliminary decree”.

Upon a review of the Patna decisions, it must be held that there is a consistent current of authorities in this Court that a partition suit cannot be dismissed at the final decree stage because of the default of the plaintiff either in appearing on the date fixed or in not taking steps for the further progress of the case. I do not see any difference in principle where no steps had been taken by the plaintiff in having the heirs of the deceased defendant brought on the record. In my view the learned Subordinate Judge had no jurisdiction to hold that the suit had abated against the heirs of defendant no. 5. He should have adjourned the proceedings sine die. How can the suit abate when the suit has already terminated in a preliminary decree? That decree cannot be altered or rendered nugatory without its reversal.

Mr. B.C De, however, relied strongly upon the case of Anmol Singh v. Hari Shankar. In that case it was held that under the present Code of Civil Procedure a mortgage suit does not terminate by the passing of a preliminary decree but continues till it is finally and completely disposed of by the passing of the final decree, and, therefore, where a suit is still continuing even after the passing of the preliminary decree, there is no reason why Order XXII, rule 4 of the Code of Civil Procedure would not apply. It was also held that the death of a party after the passing of the preliminary decree may, therefore, cause an abatement of the suit under Order XXII, rule 4. The learned Judges attempted to distinguish the Privy Council case of Lachmi Narain Marwari, but whether the distinction drawn by the learned Judges at pages 914-915 was justified or not does not fall for consideration in this case, which is not a case of a final mortgage decree. I would reserve this question for consideration if it would arise hereafter.

On the other hand, the Full Bench decision of the Madras High Court Perumal Pillay v. Perumal Chetty—a case relied upon by Ross, J. in the Patna Law Times case—fully supports the petitioner. That was a case of a mortgage decree where the plaintiff had died after the preliminary decree stage and it was held that the provisions of Order. XXII, rules 3 and 4 of the Code of Civil Procedure do not apply to the case of the death of parties after the passing of the preliminary decree. The learned Chief Justice who delivered the judgment of the Full Bench states thus with regard to the Privy Council decision: “Without discussing that case in detail, it seems clearly to proceeds on the basis that a preliminary decree determines the rights of the parties and that the rest, whatever it be, assessment of damages, working out of accounts and so forth, is a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally determined (subject, of course, to appeal) in the preliminary decree. We think that the principle underlying that case, where after preliminary decree the plaintiff did not appear when the case came on for final decree and the case was struck out, a course which the Privy Council disapproved on the grounds we have, mentioned, applied by analogy just as much to a case where a man does not appear, because he cannot appear since he is dead”. With respect, I agree with these observations. As I stated above I do not see any difference in principle when a default has been committed by the plaintiff when he does not appear deliberately or when a default has been committed when he does not appear because he is dead and, therefore, he cannot appear. In the present case the proceedings for the final decree became in fructuous because defendant no. 5 had died and therefore there was thus a defect on the record. But the rights of the parties to have a partition had been already determined by the preliminary decree. All that has happened therefore is that the plaintiff has not taken effective steps for a final determination of the allotment which should have been made to all the parties including the heirs of defendant no. 5. In such a contingency the only proper order to pass was that the further proceedings should be adjourned sine die and when the plaintiff again comes to ask for the continuation of the proceedings, it would be just and proper if he is made to pay the costs which have been thrown away.

A similar view was taken by the Madras High Court in Kambala Sundararajamma v. P.S Ramulu Chetty where the decision of this Court in Lachmi Narayan Tiwari v. Ramsaran Tiwari was approved.

For these reasons I must allow the application set aside the order of the learned Subordinate Judge dated the 17th May, 1943, and direct that the plaintiff should be allowed to continue the proceedings for making the preliminary decree final after bringing on record the heirs of defendant no. 5.

As the plaintiffs have been grossly negligent in the conduct of the proceedings and this has resulted in partial harassment to dependent no. 4, I would direct that they would pay all the cost's which have been incurred by defendant no. 4 from the 16th of July, 1941, onwards. The parties will bear their costs of this Court.

I should have stated that Mr. De also relied strongly upon the Full Bench decision of this Court in Jangli Lal. Apart from the fact that I agree with the observations of Ross, J. in Must. Bhatia v. Abdus Shakur where he has dealt with this decision, it is enough to point out that this was also a case of a mortgage decree and the question for decision was whether the final mortgage decree in the event that had happened should or should not be disregarded in execution proceedings without any formal proceedings to set it aside. In that case at the time of the passing of the final decree one of the judgment-debtors was dead and his representatives were not brought on the record. In these circumstances it was held that the decree, so far as it purported to be a decree against a dead person, was a void decree and his representatives could object to the execution of the decree on the ground that the decree was a nullity. The Question for decision before us did not directly arise.

Mr. De's argument in effect was that the final decree in this case cannot be vacated and when asked whether he would object to the execution of such a final decree he was forced to state that he would be at liberty to take objection that such a final decree was void. The absurdity of the situation thus disclosed is enough to show the unsoundness of the contention advanced.

Reference was also made to the case of Maharaja Radha Prasad Singh v. Lal Sahab Rai where it was held in the last page of the judgment of their Lordships that “an operative decree obtained after the death of a defendant, by which the extent and quality of his liability, already declared in general terms are for the first time asserted, cannot bind the representatives of the deceased, unless they were made parties to the suit in which it was pronounced”—this was a case of a decree for mesne profits. I do not see how this case is of any assistance to the respondents.

Das, J.:— I agree, and would like to add a few observations of my own.

It must be conceded that in the case of Lachhmi Narain Marwari v. Balmakund Marwari their Lordships did not specifically consider the provisions of Order XXII, rules 3, 4, etc. of the Code of Civil Procedure in their application to a case where death occurs after preliminary and before a final decree. The principles laid down by their Lordships, however, are:—

“After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside; after a decree any party can apply to have it enforced.

After the aforesaid decision of their Lordships, these principles have been applied in cases of death after preliminary and before a final decree by almost all the High Courts, with the exception of the Allahabad High Court in the case of Anmol Singh v. Hari Shankar. Their Lordships of the Allahabad High Court, did not see any reasons to extend those principles to “cases of abatement in a country where the law is to be found in a codified form”, because they distinguished the case of Lachmi Narain Marwari on the ground that the consent decree in that case was not in the nature of a preliminary decree, to be followed by a further final decree. Mr. B.C He, appearing for the opposite-party, has sought to draw the same distinction, and has argued that the consent decree which their Lordships of the Privy Council had to consider was really a final decree. The consent decree made in that case has been quoted in full in the judgment of their Lordships delivered by in Lord Phillimore, and shows that it was not a final decree in the sense in which a final decree is understood in a partition suit. The decree no doubt determined the shares of the parties (as a preliminary decree does in a partition suit), and allowed one of the parties to retain possession of the property then in his possession subject to payment, etc., according as the property in his possession exceeded the value of his one-fourth share or not. I find it somewhat difficult to accede to the Contention that such a decree is a final decree in a partition suit, when the valuation of the assets and the allotment of the remaining three shares had still to be done. It seems to me to be clearly a decree as contemplated by sub-rule (2) of rule 18, Order XX, Code of Civil Procedure.

When a preliminary decree has determined the rights of the parties, as in the present case, it can hardly be said that the right to sue still exists, and it would be inappropriate in such a case to refer to the right to sue as either surviving or not surviving. In the case of Dawarali Jafarali v. Bai Jadi the same question arose for consideration, and rules 3 and 4 of Order XXII, Civil Procedure Code, were similarly construed, apart from the principles laid down by their Lordships of the Privy Council in Lachmi Narain Marwari's case. The same view has been accepted by the Madras High Court in Perumal Pillai v. Perumal Chettyi, by the Calcutta High Court in Nazir Ahamad v. Tamizuddi Ahamad and the Lahore High Court in Hari Chand v. Dina Nath. My learned brother has already referred to several decisions of this Court in which the same view has been expressed, particularly the case of Must. Bhatia v. Abdus Shakur where the earlier case of Jungli Lall v. Laddu Ram Marwari has been considered and distinguished. Mr. B.C De contended before us that the case of Jungli Lall was not properly distinguished, inasmuch as in that case also one of the defendants had died after the preliminary decree and before the final decree. The case of Jungli Lall was, however, decided before the decision of their Lordships of the Privy Council in Lachmi Narain Marwari's case.

Even in the Allahabad High Court the question again arose in Mahabir Singh v. Dipnarain Tewary and it was pointed out that the Allahabad High Court had amended Order XXII, rule 12 of the Code of Civil Procedure, and as a result of the amendment, rules 3, 4 and 8 of Order XXII were inapplicable to proceedings after the preliminary decree.

I need only refer to another decision of the Calcutta High Court in Elokesha Dasse v. Kunjabehari Basak where a plaintiff in a partition suit had obtained a preliminary decree in 1879 and asked for the appointment of a commissioner in 1932 (fifty two years after), after the substitution of some person in place of certain deceased defendants. The application was refused. Rankin, Cl., (as he then was) considered the case of Nazir Ahamad v. Tamizuddin Ahamad and Lachhmi Narain Marwari's case and held in the pecular circumstances of that case that as the Court had a discretion in the matter under Order XXII, rule 10, Civil Procedure Code, the discretion should not be exercised in favour of the plaintiff who came after fifty years when many devolution of interest had taken place as also various grounds for contention.

Whatever may have been the position before the decision of their Lordships in Lachmi Narain Marwari's case, since that decision the majority of the High Courts (including this Court) have accepted the view that the provisions of the Code as regards abatement in Order XXII, Civil Procedure Code, do not apply in cases of death after a preliminary decree, when the rights of the parties have been determined by that decree. The case of Radha Prasad Singh v. Lal Sahab Rai can be distinguished on the ground that in that case a money decree for an ascertained amount was obtained against a dead person, and there was no question of abatement on the death of a party after the passing of a preliminary decree.

Rule made absolute.

H.R.K