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Babuie Shanti Devi v. Khodai Prasad Singh
Factual and Procedural Background
The appellant Babui Shanti Devi, daughter of Babui Ramsumeri Kuar (defendant 4 in a mortgage suit), appeared after the death of her mother, who died on 15th October 1937. A preliminary decree had been obtained during Ramsumeri's lifetime. The plaintiff applied for the preparation of a final decree and sought to substitute Bhola Prasad as the representative of the deceased Ramsumeri. The appellant objected, claiming the property was her stridhan and that she, not Bhola Prasad, was the proper legal representative. The plaintiff did not object, and the appellant was added as defendant 5. The appellant then objected to the preparation of the final decree on the grounds that the suit had abated due to failure to apply for setting aside the abatement within the prescribed time and because the original plaintiff had died without all representatives being substituted. The widow of the plaintiff was not joined, but the sons were.
Legal Issues Presented
- Whether the suit abated due to the failure to substitute the legal representative of the deceased defendant within the prescribed time after a preliminary decree had been passed.
- Whether the absence of the widow of the deceased plaintiff affected the continuation of the suit.
- The proper procedural rule governing substitution of parties after a preliminary decree but before a final decree in a mortgage suit.
- The maintainability of the appeal against the order directing preparation of the final decree.
Arguments of the Parties
Appellant's Arguments
- The property in suit was stridhan of Babui Ramsumeri and devolved on the appellant, not Bhola Prasad, making her the proper legal representative to be substituted.
- The suit had abated because no application to set aside the abatement was made within the prescribed time.
- The suit had also abated because the original plaintiff had died and not all his representatives, particularly the widow, had been substituted.
- Contended that the plaintiffs had a strict ninety-day period to substitute the appellant as representative after Ramsumeri's death, failing which the suit would abate.
- Suggested following the Allahabad High Court decision holding that if a defendant dies after a preliminary decree and heirs are not brought on record before the final decree, the suit abates against that defendant.
- Argued the appeal was premature and maintainability was questionable as it was directed against an interlocutory order.
Plaintiff's Arguments
- Did not object to the appellant's claim to be substituted as representative of the deceased defendant.
- Impliedly accepted the appellant's substitution by bringing her on record as defendant 5.
- Did not contest the absence of the widow as a plaintiff, supported by the widow's own petition disclaiming interest in the family properties.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| A.I.R 1931 Pat 57 | Principle that after a decree is made, the suit cannot be dismissed unless reversed on appeal; Rules 3 and 4 of Order 22 CPC do not apply after preliminary decree and before final decree. | Followed by the Subordinate Judge and upheld by this Court to reject the contention that failure to substitute within 90 days causes abatement. |
| Privy Council decision in 4 Pat. 612 | After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. | Formed the foundational principle for treating substitution procedure under Rule 10 of Order 22 CPC rather than Rules 3 and 4. |
| Full Bench of Madras High Court in 51 Mad. 701 | Supported the principle that Rules 3 and 4 of Order 22 CPC do not apply after preliminary decree and before final decree. | Approved and followed in the present case as binding authority. |
| 54 All. 254 (Allahabad High Court) | Held that if a defendant dies after preliminary decree and heirs are not brought on record before final decree, the suit abates as against that defendant. | Distinguished by the Court as not applicable here because substitution was applied for before final decree; ruling aligned with Privy Council in 13 All. 53 that decree against dead person is ineffective. |
| 57 Cal. 285; 2 Luck. 464; 26 Bom. 597; A.I.R 1940 Bom. 318 | Consistent authorities supporting the principle that Rule 10 of Order 22 CPC governs substitution after preliminary decree and before final decree. | Relied upon to affirm the uniformity of practice and to reject appellant's contention. |
Court's Reasoning and Analysis
The Court examined the procedural history and the relevant legal provisions concerning substitution of parties after the death of a defendant following a preliminary decree. It relied on the principle established by the Privy Council and followed by the Madras and Patna High Courts that once a preliminary decree is passed, the suit cannot be dismissed for non-substitution unless the decree is reversed on appeal. Rules 3 and 4 of Order 22 of the CPC, which govern abatement and revival of suits, do not apply in this context; instead, Rule 10 of Order 22 governs substitution procedure.
The Court considered the appellant's reliance on the Allahabad High Court decision but distinguished it on the facts, as substitution had been applied for before the final decree in the present case. The Court noted that the law has been harmonized across jurisdictions to require that no final decree can be passed without bringing the legal representative on record, but the timing and procedure are controlled by Rule 10.
The Court further found the objection regarding the absence of the widow to be without substance, supported by the widow's own petition disclaiming interest. Regarding the maintainability of the appeal, the Court held that there was no jurisdictional defect and that the Subordinate Judge's order directing preparation of the final decree was correct.
Holding and Implications
The Court DISMISSED THE APPEAL with costs.
The decision confirms that after a preliminary decree in a mortgage suit, failure to substitute a deceased party's legal representative within the usual period does not cause abatement of the suit under Rules 3 and 4 of Order 22 CPC. Instead, substitution is governed by Rule 10, and no final decree can be passed without the representative being brought on record. The ruling affirms the uniformity of this procedural principle across various High Courts, including Patna, Madras, Bombay, and others. No new precedent was created; rather, this opinion upheld existing authoritative decisions and clarified the procedural posture regarding substitution and abatement in such suits.
Rowland, J.:— The appellant Babui Shanti Devi is the daughter of Babui Ramsumeri Kuar who was impleaded as defendant 4 in a mortgage suit. A preliminary decree was obtained in the suit in the life time of that defendant who died on 15th October 1937. Thereafter the plaintiff applied for preparation of final decree and applied to substitute one Bhola Prasad as representative of the deceased Ramsumeri. This application appears to have been made on 22nd December 1939. Later on, the present appellant appeared on 30th August 1940 and objected that the property in suit having been a stridhan of Babui Ramsumeri had devolved on the appellant and she and not the son Bhola Prasad was the person to be substituted in place of Ramsumeri Kuar as her legal representative. The plaintiff did not object to these allegations and the appellant was brought on the record as defendant 5 on 9th September 1940. Thereafter on 23rd September 1940, she put in her objection urging that no final decree should be prepared because the suit had abated and no application had been made for setting aside the abatement within the time prescribed by law. Another fact relied on as a ground for holding the suit to have abated was that plaintiff 1 had died and that not all of his representatives have been substituted in his place. The widow has not been joined as plaintiff but the sons have.
2. As regards the absence of the widow, this appears to be a purely technical objection without substance, the widow herself having filed a petition stating that she is not in possession of the properties of the deceased plaintiff nor does she desire any share in the family properties, and that she gets maintenance only from the sons of the original plaintiff 1.
3. As regards the consequence of the death of Ramsumeri, it was represented in the Court below that it was incumbent on the plaintiffs to substitute the appellant within ninety days failing which the suit would abate.
4. This contention was negatived by the Subordinate Judge on the authority of the decision of this Court in A.I.R 1931 Pat. 57.1 That decision was passed on the principle of the Privy Council decision in 4 Pat. 612 and followed and approved the decision of a Full Bench of the Madras High Court in 51 Mad. 701.3 The Privy Council decision referred to has laid down the principle: “After a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed in appeal.” The Madras and Patna decisions following this have held that Rr. 3 and 4 of O. 22 of the CPC, do not apply in case of the death of a party after a preliminary and before the final decree. The result is that the subsequent arrangement for continuation of the suit must be considered to be governed by O. 22, R. 10.
5. It has been suggested by Mr. Mullick for the appellant that we should follow the authority of the Allahabad High Court where it has been held in 54 All. 254 that if a defendant dies after the passing of a preliminary decree for sale on a mortgage suit and his heirs are not duly brought on the record and final decree comes to be passed, the suit abates as against him. That was not a case in which substitution was applied for beyond the period prescribed in an ordinary case of abatement, but was one in which no substitution had been made before the passing of the final decree which thus came to be passed against a dead person. Such a decree no doubt, will never be effective. That much is established by the Privy Council decision in 13 All. 53.5 But it does not seem to me that the reasoning in the Allahabad decision would justify us in questioning the soundness of the view in the Madras and Patna decisions a view which has also been taken in 57 Cal. 285,6 2 Luck. 4647 as well as under the old Code in 26 Bom. 5978 and more recently in A.I.R 1940 Bom. 318.9 I understand that the same view is taken in Rangoon, Lahore and Nagpur. The rule seems to be that, on the one hand, no final decree can be passed without the representative of the deceased party being brought on the record; but on the other hand, that R. 10 and not Rr. 3 and 4 of O. 22 are to be regarded as governing the procedure for making the necessary substitution. By an amendment of R. 12 of O. 22, the law in Allahabad has been brought into line with the law as interpreted in the other High Courts: so that there is now, it would seem, a general uniformity of practice, not to be lightly disturbed. The contentions of the appellant are therefore in my opinion without substance.
6. A preliminary objection was also taken to the maintainability of the appeal, for, it is directed against the order of the Subordinate Judge directing that account be prepared and final decree made out. It is said that the appellant should have awaited the completion of the final decree and preferred a regular appeal against that, Mr. Mulliek found it difficult to resist this argument and suggested, in the alternative, that we should treat this as an application in revision in order to give him relief and to prevent the supposed waste of time, labour and cost in the preparation of a decree which was bound to be in fructuous. There is no defect of jurisdiction which would call for our interference and, as I have shown, the decision of the Subordinate Judge appears to be correct. I would dismiss the appeal with costs.
G.N/E.K
7. Appeal dismissed.
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