PROBHAT COOMAR MUKHERJI Vs. BIRENDRA NATH DEY

JUDGEMENT

(1.) THIS Rule was obtained by the petitioners, who were the defendants in the connected mortgage suit against an order of the learned trial Judge, holding inter alia that the suit had not abated, as claimed by the petitioners.

(2.) FOR our present purpose, it is enough to say that the instant suit was a suit on mortgage, in which a preliminary decree had teen passed. Thereafter, it appears, the original defendant died arid an application was made by the plaintiffs for bringing on the record his legal heirs. This application, how-ever, was made beyond ninety days and an objection was taken that, in the circumstances, the suit must be held to have abated, as the application must be taken to be one under Order 22, rule 4 of the Code of Civil Procedure.

(3.) THE learned trial Judge overruled this objection upon the view that a suit, after the preliminary decree,. cannot abate and the application for substitution must, in the circumstances, be taken to be one under Sec. 151 of the Code. The propriety of this view is challenged in this Rule.