BHUTNATH JANA Vs. TARA CHAND JANA

JUDGEMENT

(1.) The plaintiff obtained a preliminary decree in a mortgage-suit against one Tara Chand Jana on 6th February 1915. This was a decree under Order XXXIV, Rule 4, Civil Procedure Code. On 26th January 1918 an application was made for making this decree absolute. To this objection was taken that Tara Chand had died on 19th April 1916. The lower Courts have held that, as the application was not made within six months of Tara Chand s death. Order XXII, Rule 4, Civil Procedure Code applied and the suit abated.

(2.) A preliminary objection has been taken that no second appeal lies. It appears that the lower Appellate Court wrongly treated the appeal to it as an appeal from an order refusing to set aside the abatement of the mortgage-suit. Had it been an appeal from such an order, there would have been no second appeal to this Court, But the lower Appellate Court was clearly wrong on this point. The order against which the appeal was preferred was an order rejecting the application to make the mortgage-decree absolute. That order had the effect of finally dismissing the mortgage-suit and was a decree, and the appeal to the lower Appellate Court should have been made in the form of an appeal from a decree. As the order dismissing that appeal was a decree, a second appeal lies to this Court.

(3.) As regards the merits, as was held in Mehari Bibi v. Yakub Ali 11C.W.N. 136, under the law before the passing of the new Code of Civil Procedure, the application would not have been liable to dismissal on account of the death of the defendants. There is no case directly in point decided since the passing of the present Civil Procedure Code, but the point was considered by the Allahabad High Court in Nizam Uddin Shah v. Bohra Bhim Sen 43 Ind. Cas. 870, 40 A. 201 : 18 A.L.J. 85. There the learned Judges remarked in a similar case that it would appear that, when the application to bring the heirs of the deceased defendant on to the record within six months from the date of her death had not been made, the suit had abated. They then added that it was not necessary for the decision of that case that they should decide that point. Having regard to the alterations made in law regarding mortgage suits by the bringing of certain portion of the Transfer of Property Act into the Civil Procedure Code, I think there is no ground for holding that applications made in a mortgage-suit after a preliminary decree had been passed and before the final decree are exempted from the provisions of Order XXII of the Code, From Rule 12 of that Order it would appear that the provisions of Rules 3, 4 and 8 do not apply to proceedings in execution of a decree or order, but there is nothing else in the code which takes proceedings in a suit which has not been finally, decided outside this Order. As was held by this Court in the case of Amolak Chand Parak v. Sarat Chandra Mukhejee (sic) Ind. Cas. 943 : 38 C. 913 : 16 C.W.N. 49, a decision which was affirmed on appeal by the Privy Council in Munna Lal v. Sarat Chunder 27 Ind. Cas. 683 : 42 C. 776 : 17 M.L.T. 120 : 21 C.L.J. 118: 2 L W. 282 : 19 C.W.N. 561 : 17 Bom. L.R. 408 : 28 M.L. (sic) 470 : 42 I.A. 88 P.C., an application following on a preliminary decree for sale is not an application for execution. Until the final decree is passed the proceedings following the preliminary decree in a mortgage-suit must be looked on as proceedings in a pending suit, The consequence is that, although the decree holder has three years to apply for making a preliminary decree final, yet if the sole judgment debtor has died within that period he will still have to come within six months of the death to have his heirs substituted and make them subject to the preliminary decree. We, therefore, uphold the order of the lower Appellate Court and dismiss this appeal with costs. Buckland, J.