EKNATH RAMJIWANJI Vs. HANMANTRAM RAGHUNATH

JUDGEMENT

(1.) THIS is an appeal which arises out of a mortgage suit. A preliminary decree for sale was passed on 28-11-1941. After the passing of the preliminary decree, Jagannath, one of the decree-holders, died. A final decree for sale was passed without bringing his legal representatives on the record. When this was discovered an application was made under Order 22, Rule 10, Civil P.C., for leave to continue the suit by the legal representatives of the deceased on whom the interest of the deceased decree-holder had devolved on his death. This application was allowed and a fresh final decree for sale was passed. The judgment-debtor filed an appeal under Order 43, Rule (1)(k), (sic) Civil P.C., 1908, against the order of the lower Court passed under Order 22, Rule 10 of the Code. This appeal was dismissed by the Court of the First Additional District Judge, Amraoti, on 15-10-1945, in Transfer Miscellaneous Appeal No. 10 of 1945. It is against this appellate order that the present appeal has been filed. It may be noted that no appeal was filed against the final decree for sale. Two questions arise for decision in this appeal: (i) whether an appeal is competent against the order, and (ii) if not, whether the appeal should be treated as an application in revision. No appeal lies against an appellate order passed under Order 43, Rule 1, Civil P.C.: vide Section 104(2) of the Code. We expressed our opinion on 11-3-1946, that no second appeal lay against the order. The learned Counsel for the appellant desired that he should be heard further on the point which we have done. We are clearly of the opinion that no appeal lies.

(2.) IF a party to a suit dies and the right to sue survives his legal representatives have to be brought on record on an application made within 90 days from the date of death under Order 22, Rule 3 or Rule 4 as the case may be and if it is not done the suit abates as against the deceased plaintiff or the defendant as the case may be. The order of abatement may be set aside if the conditions of Rule 9 of the Code (sic) are satisfied. Under Order 22, Rule 10 of the Code in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. There is no abatement of a suit in cases to which Order 22, Rule 10 of the Code applies. In Tularam v. Tukaram A.I.R. 1921 Nag. 32. Hallifax A.J.C. held that Rules 1-4 of Order 22, Civil P.C., do not apply to a case in which the death of a party occurs between the passing of preliminary and final decrees in a suit. The reason assigned was that these rules apply before the passing of a decree and after a decree is passed there is no longer a right to sue but it merges in the decree. This view was affirmed in Bapu v. Gulabchand where it was held that where a party dies after the passing of a preliminary decree in a suit, but before a final decree, Order 22, Rule 10, applies and not Order 22, Rule 4. This view is in accord with the view taken in Dawarali Jafarali v. Bai Jadi ; Nazir Ahammad v. Tamijaddi Ahammad Mt. Lakhpati Kuar v. Daulat Singh Hari Chand v. Dina Nath A.I.R. 1937 Lah. 164 Perumal Pillay v. Perumal Chetty A.I.R. 1928 Mad. 914 and Mt. Bhatia v. Abdus Shakur A.I.R. 1931 Pat. 57. A contrary view was taken in Mahabir Singh v. Dip Narain Tewari . Rule 12 of Order 22 has been amended by the Allahabad High Court by a local amendment by inserting the words, or to proceedings in the original Court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit.