KISHAN LAL Vs. NATHI LAL

JUDGEMENT

(1.) This is a revision petition at the instance of the legal representatives of one Nanhay Ram deceased. The said Nanhay Ram had instituted a suit against the respondent Nathi Lal for recovery of an amount due on a mortage. A decree was passed in that suit on 21st July, 1964. According to both the parties before me this was a preliminary decree, though a copy of the decree that I have been shown, does not appear to be a preliminary decree in the form contemplated by Order 34, rules 4 and 5 of the Code of Civil Procedure. I am assuming, however, for the purpose of this order that the decree is a preliminary decree. After the said decree had been passed, Nanhay Ram died on 22nd September 1964 before the time for payment of the money, which was fied by the decree as 21st April 1965, had elapsed. Thereafter, an application was made by the present petitioners to be impleaded in the suit under Order 22, rule 3 of the Code. This application was contested by the respondent, who was defendant in the suit, on the ground that Order 22 rule 3 did not apply. The application for bringing the legal representatives on record in place of the deceased was dismissed for default on 1st January 1965, but was restored on 12th January 1965. In any case. the original application was within time and even if it was dismissed" in default, it was restored. The objection of the defendant that the application was barred by time was disposed of by the trial court on the basis that there was no time limit for the impleading of the legal heirs once the preliminary decree had been passed and the objection that Order 22 rule 3 was not applicable to the case was also rejected, but the application was dismissed solely on the ground that there could not be a substitution of legal representatives when no proceedings were pending before court. The argument, which seems to have influenced the court below, appears to be that as the preliminary decree had been passed and no application for passing the final decree had been moved, the court was functus officio to pass any order under Order 22 rule 3. It is further implied in the Court's order that the application for substitution could only be made after the application for a final decree had been made. However, the question would then arise as to who could make an application for a final decree when the original plaintiff had already died. Obviously, such an application could only be made by a party to the suit, who would have to be impleaded in some way as a legal represenative. The trial court does not. therefore, seem to be right in coming to the conclusion that the application for substitution should have been made after the application for passing a final decree was made because it is only after the representatives had been impleaded that they could be competent to move for a final decree. Hence the court is clearly not right in dismissing the application on that ground-but that is not the end of the matter.

(2.) After a preliminary decree has been passed, there is a conflict of authority as to whether Order 22 rule 3 is applicable or not. It was decided by the Privy Council in Lachhmi Narayan Marwary and others v.Balmakund Marwary and another, (1) that once a preliminary decree had been passed, the suit could not be dismissed in default. This judgement has been interpreted in various ways by the various High Courts so as to mean that once a preliminary decree had been passed, the rights of the parties were crystalized by the preliminary decree and did not depend on the original rights which formed the basis of the cause of action in the suit and in applying this principle to a situation like the present, it has been held in the various decisions of the High Courts that in a suit in which a preliminary decree has been passed, there can be no abatement. One of the latest of these authorities is by the Rajasthan High Court, which is reported as Pooranchand and others v. Shriram and others, (2) and therein reliance is chiefly placed on the judgment or Beaumont C. J. in Dawarali Jafarali Saiyad v. Bai Jadl and others,(3) wherein the following observations were made :-

(3.) Following these observations, it was held that Order 22, rules 3 and 4 did not apply. The same view was taken in Shanti Devi v. Khodai Prasad Singh,(4) Raghunandan Sada v. Badri Pandey,(5) Eknath Ramjiwanji v. Hunmantram Raghunath(6) and Tara Pada Ray v. Shyama Pada Ray,(7).