Beaumont, C.J:—
This is an appeal from a decision of the Extra Assistant Judge of Ahmedabad, and it raises a question, on which there has been some difference amongst the High Courts as to whether, when a defendant dies after a preliminary decree in a mortgage suit and his heirs are not brought on record within the time limited by law, the suit abates.
The material facts are that the plaintiff brought a suit to enforce a mortgage against Haji Bibi as the mortgagor. The arguments in the suit were concluded on July 10, 1928. Haji Bibi died on July 22, judgment was given on the same date, and a preliminary decree was passed on July 23. It is, in my opinion, clear that having regard to the provisions of O. XXII, r. 6, Civil Procedure Code, the preliminary decree is good as against Haji Bibi; it takes effect, as though it had been pronounced before her death. The note in Mulla's Civil Procedure Code on O. XXII, r. 6, that in a mortgage suit the ‘judgment’ referred to in this rule is the judgment supporting the final decree and not the judgment supporting the preliminary decree, and the ‘hearing’ referred to in the rule is the hearing of issues upon which judgment is to be delivered determining the plaintiff's right to a final decree, seems to me to be clearly wrong, and to be based on a misapprehension of the case cited in support of it, viz. Jungli Lall v. Laddu Ram Marwari. The argument in that case was that the period referred to in r. 6 was the period between the conclusion of the argument, on which the preliminary decree was based, and the final decree, and that argument not unnaturally failed. It is, in my opinion, quite clear that r. 6 applies to the judgment based on arguments which have been concluded before the death and such judgment may be the judgment founding either a preliminary decree or a final decree.
So that we have to deal with the case on the footing that the defendant died immediately after the preliminary decree was passed. In July 1929 there was an application for a final decree. At that time, admittedly, the heirs of Haji Bibi had not been brought on record. But in that application the defendants named were the heirs of Haji Bibi, that is the husband, who was major, and three children who were minors. The learned Judge directed those defendants to be served, and passed a final order for sale, noting that the defendants were absent, though served. It is, of course, clear that even if the suit did not abate on the death of Haji Bibi and the failure to bring her heirs on record, a final decree could nab have been passed against a dead person, and it was essential that her heirs should be before the Court when the final decree was passed. It may be that there was an irregularity in that no formal application had been made to the Court to bring the heirs on record. But the learned Judge, in accepting the record showing the heirs as defendants and in serving them, in my opinion, must be taken to have directed the heirs to be brought on record, though this was after the time limited under O. XXII, r. 4, to which I will refer presently. I think, therefore, that the final decree was valid, assuming that the suit had not abated. That view is supported by a decision of this Court in Sitaram v. Anant. On that view of the matter I think that in execution of the final decree the plaintiff was not entitled to raise the point that the suit had abated. However, as the question of abatement has been raised, and dealt with by the learned Extra Assistant Judge, I will dispose of it.
The Madras High Court in Perumal Pillay v. Perumal Chetty, the Calcutta High Court in Nazir Ahammad v. Tamijaddi Ahammad Howladar, the Rangoon High Court in A.T.K.P.L.M Muthiah Chettyar v. Tha Zan Hla, and the Lahore High Court in Hari Chand v. Dina Nath have all held that a suit does not abate by the death of a plaintiff or defendant after a preliminary decree and failure to bring the heirs on record within the due time. On the other hand the Allahabad High Court in Anmol Singh v. Hari Shankar has come to a contrary conclusion. The Calcutta High Court relied very strongly, and the other High Courts relied to some extent, on a decision of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari In that case the High Court had passed a decree for partition by consent, and the suit was then referred to the Subordinate Court to work out the terms of the partition. In the Subordinate Court the plaintiff failed to appear upon some application, and the learned Subordinate Judge thereupon dismissed his suit. Their Lordships in the Privy Council held that the Subordinate Judge could not dismiss a suit after a decree had already been passed. The particular passage, which is relied on, is in these terms (p. 325):—
“After a decree has once been made in a suit, the suit cannot be dismised 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.”
Their Lordships were, however, dealing with a case under O. XVII, r. 2, and were not considering the language of O. XXII, rr. 3 and 4, which deal with abatement; and although the observations, which I have quoted, are no doubt of general application, they cannot be conclusive on the question which we have to determine, because a rule, which provided in express terms that a suit should abate in certain circumstances even after a decree, would, I apprehended, be competent.
The question must ultimately turn on the construction of the relevant rule, which is r. 4, O. XXII. Rule 3 deals with the death of a plaintiff, and r. 4 deals with the death of a defendant. The rules are couched in corresponding language, but as this case involves only the of a defendant, I need not refer to r. 3. Rule 4 provides that where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. Then sub-r. (3) provides that where within the time limited by law no application is made under sub-r. (1), the suit shall abate as against the deceased defendant. Admittedly here no application was made within the prescribed time, and the contention of the appellant is that the suit has abated, since the words “the suit shall abate as against the deceased defendant” are mandatory and apply to this case.
But I do not take that view. The use of the definite pronoun shows that the suit, which is to abate, is the suit referred to in the earlier part of the rule, and that is a suit in which the right to sue either does not survive against a surviving defendant or defendants alone, or does survive, in the case of the death of a sole defendant. Now, where a preliminary decree has been passed, it seems to me that it is quite inappropriate to talk about the right to sue surviving. The rights of the parties are crystallised by the preliminary decree. The mortgage is established, the mortgagor has a right to redeem, and in default the mortgagee is given certain rights. It is no longer open to the plaintiff to sue in respect of his original cause of action; all he can do is to enforce his rights under the preliminary decree. No doubt an application for a final decree is not technically an application in execution of the preliminary decree, but it is certainly not an application in respect of the original right to sue. It is an application to enforce the rights under the preliminary decree, and though the suit may be continued for that purpose, it seems to me inappropriate to refer to the right to sue as either surviving or not surviving. Therefore, on the language of O. XXII, r. 4, I feel no doubt that the rule does not apply to a case in which a preliminary decree has been passed. The Allahabad High Court considered that the rule did apply. But I think the learned Judges did not notice the point to which I have referred, namely, that it cannot be said that any right to sue still exists after a preliminary decree has been passed. That is the ground on which the High Courts of Madras and Rangoon in particular have proceeded, and, in my opinion, that is the right view of the matter. The learned Extra Assistant Judge himself took that view and directed the Darkhast to proceed. In my opinion his decision was right, and the appeal must be dismissed with costs.
Sen, J.:—I agree.
Appeal dismissed.
Y.V.D