NAZIR AHMMAD Vs. TAMIJADDI AHAMED

JUDGEMENT

(1.) The question of law which arises for consideration in this appeal is. as to whether on the death of one of two mortgagees after they had obtained a preliminary decree for sale of the mortgage property the suit abates if the heirs of the deceased mortgagee are not brought on record of the suit within the time limited by law. The appellants who are the surviving mortgagee and the heirs of the deceased mortgagee contend that the suit does not abate whereas the mortgagors, now respondents, contend that the suit has abated. The lower appellate Court has accepted the contention of the respondents and has dismissed the plaintiffs suit.

(2.) The appellants contend that the view taken by the lower appellate Court is erroneous as Order 22, Rule 3, Civil P.C. does not apply where a plaintiff in a mortgage suit dies after the preliminary and before the final decree; on the other hand the respondents contend that Order 22, Rule 3 applies as under the Code of 1908 proceedings after the preliminary decree are not proceedings in execution and that the suit continues until the final decree is passed.

(3.) It seems to us that the contention of the appellants must prevail for as has been recently pointed out by their Lordships of the Judicial Committee of the Privy Council that after a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. In the case of Lachmi Narayan V/s. Balmulcund A.I.R. 1924 P.C. 193 Lord Phillimore in delivering the judgment of their Lordships said: The parties have on the making of the decree acquired rights or incurred liability which are fixed unless or until the decree is varied or set aside. After a decree any party can apply to have it enforced.