The appellant claims to be the legal representative of the plaintiff, who obtained a preliminary decree, in a mortgage suit, in O.S No. 97 of 1912.
The plaintiff admittedly had died before this appellant applied on 29th November, 1915, to be recognized as the heir of the plaintiff and to get a final decree passed.
His application was dismissed on 9th February, 1916, on account of his absence.
As he did not get himself brought on the record at that time, the suit abated under O. 22, R. 3, of the Code of Civil Procedure, upon six months expiring after the plaintiff's death; and as he did not apply subsequently to have the abatement set aside, the present application presented on 10th October, 1918, is out of time and incompetent.
It is true that the District Munsif erroneously held that the suit had not abated, because the plaintiff's death occurred between the passing of the preliminary and the final decrees. But this Court has held in Lakshmi Achi v. Subbarama Ayyar that the suit is continued till the stage of final decree is reached: see also Subbarayudu v. Ramadasu(2), which is a direct authority for holding that after the abatement of the suit an application to pass a final decree, which is not made within the time provided by law, should be dismissed as time barred.
This Civil Miscellaneous Second Appeal is therefore dismissed with costs.
C.KAppeal dismissed.