ASKARI HASAN Vs. JAHANGIRI MAL

JUDGEMENT

(1.) In this appeal a question arises as to whether the respondents right has abated; owing to the death of Bilas Rai, who was the original decree-holder in a mortgage suit. The decree which was passed was a compromise decree and allowed for payment of the mortgage money in instalments. According to the view take by the Allahabad High Court in Jagarnath Umar V/s. Ram Karan Singh A.I.R. 1922 All. 396 the proceedings were not concluded by that decree but it was necessary to go on and obtain a final decree under Order 34, Rule 5 of the Code of Civil Procedure. If this view is followed the present suit must be held to have abated as the applicants did not have their names put on record within three months of the death of Bilas Rai. The lower Court has followed a ruling of the Calcutta High Court, Bechu Singh V/s. Bicharam Sahu [1909] 10 C.L.J. 91, and certain other rulings, both of the Calcutta and the Patna High Courts, which appear to be in direct conflict with the ruling of the Allahabad High Court to which we have referred. The Patna High Court ruling is reported in Ishan Chandra Kundu v. Nilratan Adhikari A.I.R. 1923 Patna 375. In view of this conflict of authority we are of opinion that the matter should be referred to a larger Bench. We therefore submit the case to the Hon ble Ag. C.J., with a request that he will constitute a Bench for the determination of the following question:

(2.) Whether in a compromise decree passed for payment of mortgage money in instalments, and not on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 applies, and it is necessary to apply for final decree under Rule 5. Judgment of the Full Bench Lindsay, J.

(3.) The question referred for the opinion of the Full Bench of this Court is as follows: Whether in a compromise decree passed for payment of mortgage money in instalments, and not on a fixed date within six months from the date of declaring the amount due, Order 34, Rule 4 applies and it is necessary to apply for final decree under Rule 5.