ALI BAHADUR BEG Vs. RAFI-ULLAH

JUDGEMENT

(1.) THE question arising for decision in this second appeal is whether the suit has abated as no application was made for substitution within the time prescribed after the death of the judgment-debtor. A preliminary decree for sale in this mortgage suit was dated the 13 of May 1920. THE judgment-debtor died in July 1920 and admittedly no application for substitution was made prior to the application for final decree on 12 of May 1923. It has been argued that in a case of this kind Order 22, Rule 4 does, not apply because of the use of the words "right to sue," and Rule 10 is more applicable to this case. This view is based upon a decision of the Nagpur Court to which we have been referred: Tula Ram V/s. Tukaram A.I.R. 1921 Nag. 32. But we do not find ourselves in agreement with the reasoning in that decision. In our opinion the law has been more correctly laid down by the Madras High Court in Lakshmi Achi V/s. Subbarama Ayyar [1916] 39 Mad. 488 and in a later ruling reported as: Dakoju Subbarayudu V/s. Musti Rama Das A.I.R. 1923 Mad. 237 mutatis mutandis the observations of the learned Judges in that case are applicable to the one before us. THEy pointed out that Rule 10 can only apply when an application under Rule 3 here Rule 4, is barred. In that case every condition required by Rule 3 was present and here every condition required by Rule 4 is present. THE judgment-debtor died after the passing of the preliminary decree and the right to sue which includes the right to continue the suit survived. THE appeal is dismissed with costs.