JUDGMENT
1. This is an appeal by the plaintiffs from an order of the Court below actually dismissing the suit, which has been treated as an order refusing to set aside an abatement against the contesting defendants only, from which an appeal lies under Order 43, Rule 1(k).
2. While a mortgage suit was pending against the numerous defendants Mahadeo, defendant 4, died on 3rd July 1922, but an application to bring his son and heir, Chandar Deo, was filed on 30th January 1923, without informing the Court of the lapse of time which had intervened. Notice was issued to the proposed heir and there was substituted service by means of affixation of notice and publication in a newspaper. On 27th March 1924 a preliminary decree in the mortgage suit was passed ex parte. After this decree two of the other defendants, namely, Gobardhan Das, defendant 2 and Shyam Sunder Das, defendant 3, also died on 9th February 1926, and 23rd March 1926, respectively. An application was filed by Chandar Deo, the heir of Mahadeo Panda, for setting aside the ex parte decree on the ground that he had no information of the suit. Another application appears to have been filed by the heirs of Gobardhan Das and Shyam Sunder Das, alleging that they also had no information about the suit. The application however is not to be found on this record, but both these applications were disposed of by a joint order of the Court dated 13th January 1928 on a finding that the applicants had no information of the suit. The ex parte decree was accordingly set aside as against the applicants and the suit was restored so far as they were concerned.
3. The position, strictly speaking, was that Mahadeo Pande had died and an application for substitution of the name of his heir had been made though beyond time; and that Gobardhan Das and Shyam Sunder Das died after the preliminary decree and no formal application to bring the heirs upon the record was made up to that time. On 9th February 1928, the heirs of Gobardhan Das and Shyam Sunder, by their application pointed out that their names had not been formally brought on the record and that the suit could not continue as against them. The plaintiffs promptly applied on the same date to bring their names on the record as the legal representatives of the two deceased defendants. The Court made an order accordingly and allowed time to the heirs of the deceased defendants to file a written statement. These defendants filed a written statement on 13th February 1928, in which they took the plea that the suit had in fact abated as against them because no application for substitution of names had been filed within the time allowed by law. The learned Subordinate Judge acceded to this contention, and holding that the suit had abated dismissed the suit as against these contesting defendants, that is to say, against the heirs of Mahadeo Pande, Gobardhan Das and Shyam Sunder Das. It is from this order that the principal appeal has been preferred.
4. The first point urged on behalf of the appellants is that after a preliminary decree had once been passed there was no question of abatement at all. Strong reliance is placed on the pronouncement of a Full Bench of the Madras High Court in the case of Perumal Pillay v. v. Perumal Chetty A.I.R. 1928 Mad. 914, which has been followed by the Calcutta High Court and the Lucknow Chief Court.
5. The learned Chief Justice of Madras in delivering the judgment of the Court relied mainly on the principle laid down in Chapman v. Day [1883] 48 L.T. 907, as well as the pronouncement of their Lordships of the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari A.I.R. 1924 P.C. 198. The learned Chief Justice considered that this was a case of a casus omissus from the Code of Civil Procedure and there was no express provision to meet the case of a party dying after the passing of the preliminary decree and before the final decree is passed. He therefore considered that it was open to the High Court to lay down a rule of practice which would be the most logical rule to follow. The specific provisions of the Code, apart from those contained in Rr. 3 and 4, do not appear to have been examined.
6. The Calcutta High Court in the case of Nazir Ahammad v. Tamijaddi Ahammad A.I.R. 1929 Cal. 430 has accepted this view. In the course of the judgment it was also remarked that the Allahabad High Court in Ali Bahadur Beg v. Rafiullah A.I.R. 1927 All. 272 had taken the same view. We shall point out hereafter that this assumption was incorrect.
7. The Lucknow Chief Court in Mt. Lakhpati kuar v. Daulat Singh A.I.R. 1927 Oudh 156 has undoubtedly accepted the same view. Stress has also been laid by the learned Judges on the language of Order 2, Rule 6 in support of their view which we shall consider presently.
8.Now if their Lordships of the Privy Council have laid down any principle which ought to apply to the ease before us we are of course in duty bound to follow that ruling. Lachmi Narain Marwari v. Balmakund Marwari A.I.R. 1924 P.C. 198 was a case in an appeal arising from a partition suit; the parties compromised their suit before the High Court and a consent decree was passed by the High Court in the terms quoted on p. 63. Although certain proceedings still remained after that decree the form of the decree does not suggest that the parties clearly expressed their intention that the consent decree should be in the nature of a preliminary decree to be followed by a further final decree. So far as the parties were concerned they finally settled their disputes and their compromise was embodied in the decree. The judgment of their Lordships of the Privy Council also suggests that all that had remained after the decree was certain supplementary proceeding with a view to carry out the decree. When the case was remitted to the Subordinate Judge in order that necessary steps for effecting the partition be taken he fixed a date for hearing the parties and gave them notice. On the day fixed although he waited the whole day the plaintiffs and their pleaders did not turn up and he then dismissed the suit for want of further prosecution. He had thought that the proceeding was governed by the provisions of Order 17, Rule 2 and the date was the day to which the hearing of the suit had been adjourned. The Patna High Court was of opinion that it; was never intended that there should be a hearing of the suit in the ordinary sense of the word but merely some interlocutory matter decided between the parties as to the future conduct of the suit. Their Lordships of the Privy Council, in dismissing the appeal observed:
After a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of a decree, acquired rights or incurred liabilities which are fixed, unless and until the decree is varied or set aside. After a decree any party can (as already stated) apply to have it enforced.
9. The passage quoted above with reference to the facts of that case fully applied to a compromise decree passed between the parties.
10. We may point out that under Order 20, R.18, it is not obligatory on a Court to pass a preliminary decree in a suit for partition, but the Court may pass such a decree if the partition or separation cannot be conveniently made without further enquiry. Much less therefore is it obligatory on the parties to a suit who are compromising their dispute that there should be a preliminary decree in a partition suit in the first instance. On the other hand Order 34 requires that there should be a preliminary decree followed by a subsequent final decree. But even in the case of a mortgage suit, it is possible to have a compromise decree which is the final decree itself there being no intention that there should be another decree after it. We may in this connexion refer to the case decided by a Full Bench of this High Court, Askari Hasan v. Jahangiri Mal A.I.R. 1927 All. 167.
11. It may further be pointed out that although if a partition suit is to become infructuous no fresh suit can be instituted on the same cause of action, nevertheless if the property remains joint and undivided there is nothing to prevent a cosharer, subsequently on a fresh cause of action, from again suing for division of the joint property and for the separation of his share. To hold that his right to get a partition is extinguished would be tantamount to holding that the property has become impartible.
12. It is therefore clear to us that the case before their Lordships of the Privy Council was a case of a totally different character and their Lordships had not to consider the specific language of the various rules in Order 22 and we see no reason to extend the principle underlying that decision to cases of abatement in a country where the law is to be found in a codified form.
13. On the same ground we think that the principle underlying the decision in Chapman v. Day [1883] 48 L.T. 907 cannot be strictly applied to cases arising under the Code of Civil Procedure if we can find specific provision in the Code which ought to govern our decision.
14. With great respect to the learned Judges of the Madras High Court we are unable to hold that this is a ease of a casus omissus from the Code of Civil Procedure. Before the new Code was passed there was a difference of opinion between the various High Courts as to whether the proceedings following upon a decree under Section 87, T.P. Act, were proceedings in execution or proceedings in a suit. That controversy has now been set at rest by the explanation added to Section 2 of the Act. A decree in a suit may be either preliminary or final. A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of; it is final when such an adjudication completely disposes of a suit. There cannot therefore be the least doubt that under the Code of Civil Procedure now in force the suit does not terminate by the passing of the preliminary decree but continues till it is finally and completely disposed of by the passing of the final decree. This point has arisen in numerous cases in connexion with the period of limitation which should be applicable to applications for the framing of a final decree and it has been unanimously held by all the High Courts that the proceedings are not by way of execution but in the suit itself. We need only refer to a few cases of our own High Court on this point: Abdul Majid v. Jawahir Lal [1911] 33 All. 154; Moti Lal v. Ram Narain [1917] 39 All. 551; Gajadhar Singh v. Kishan Jiwan Lal [1917] 39 All. 641; Nizamuddin Shah v. Bohra Bhim Sen [1918] 40 All 203; Ahmad khan v. Mt. Gaura [1918] 40 All. 235.
15. Now when the suit is still continuing even after the passing of the preliminary decree, it is difficult to sea how Order 22, Rule 4, cannot be applicable to it. It expressly states that the Court "shall proceed with the suit." There seems to be no reason to restrict the meaning of the word "suit" in this particular rule and say that there "suit" means the stage in the suit up to the passing of the preliminary decree only 'and not thereafter.
16. It has been held by the learned Judges who have taken the contrary view that the case might fall under Rule 10 and not Rule 4, but Rule 10 applies to "other cases", which obviously mean cases other than those of death, marriage and insolvency, which have been dealt with in the rules which precede it. It may also be noted that for a case under Rule 10 it is not obligatory on the Court to substitute the name of the person on whom the property has devolved during the pendency of the suit, but there is a discretion to allow the suit to be so continued if the Court thinks fit to grant leave. Obviously such a discretion could not have been contemplated in the ease of the death of a party to the suit. It may further be pointed out that Rule 12 of that order expressly excludes the operation of Rule 4, from proceedings in execution of a decree or order and does not exclude its operation in the case of proceedings between the preliminary decree and the final decree. Had the legislature intended to exclude such proceedings the position would have been made clear in Rule 12. Stress has been laid by the Lucknow Chief Court on the language of Rule 6, where "cause of action" is mentioned and not the "right of suit." But Rule 6, which is a new addition to the Code, embodies an altogether different principle of law. It was pointed out by this High Court in Chetan Charan Das v. Balbhadar [1899] 21 All 314 that if death occurs some time after the hearing of the suit and before the delivery of the judgment, the judgment would date from the date of the hearing and the decree would be a valid decree in spite of the fact that the death of the plaintiff was not known to the Court at the time that the judgment was pronounced. That rule was the application of a larger general principle actus curiae nemini facit injuriam. Rule 6 would be applicable even if the cause of action does not survive. It therefore deals with different principle altogether and cannot be availed of in interpreting Rule 4 of that order.
17. So far as this High Court is concerned the view has been consistently held that the death of a party after the passing of the preliminary decree may cause an abatement of the suit and no case expressing a contrary opinion has been brought to our notice. We may refer to the case of Jagar Nath Umar v. Ram Karan Singh A.I.R. 1928 Mad. 914 in which the judgment was delivered by the learned Chief Judge of the Lucknow Chief Court when he was a Judge of this Court, and also to the case of Ali Bahadur Beg v. Rafiullah A.I.R. 1927 All. 272, which was decided after the pronouncement of their Lordships of the Privy Council in the case of Lachmi Narain Marwari v. Balmakund Marwari A.I.R. 1924 P.C. 198. The effect of this decision has been misunderstood by the learned Judges of the Calcutta High Court because of the misleading head-note. In that case the party died after the passing of the preliminary decree and an application to set aside the abatement was filed after the expiry of the period of limitation. The District Judge held that the application was time barred and that the suit had abated. This order was affirmed by the High Court. In the course of the judgment the learned Judges clearly stated: "Here every condition required by Rule 4 is present." They obviously held that Rule 4 applied, that there was an abatement of the suit and that the application for setting aside She abatement not having been made in time had been rightly held by the District Judge to have been barred by time. This case therefore, far from being an authority for 'the opposite view, is an authority for the view which we have taken in this case.
18. We may further mention that before the pronouncement of the decision in Lachmi Narain Marwari v. Balmakund Marwari A.I.R. 1924 P.C. 198 the opinion expressed in several cases by the Madras High Court was the same though it has now been overruled by the Full Bench so far as that High Court is concerned. Similarly a Full Bench of the Patna High Court, in the case of Jangli Lall v. Laddu Ram Marwari [1919] 50 1. C. 529 (F.B.), held that there can be abatement in such circumstances. The same view was held by the Calcutta High Court in Bhuthnath Jana v. Tara Chand Jana A.I.R. 1921 Cal. 551.
19. We are accordingly of opinion that there is nothing in the case of Lachmi Narain v. Balmkaund Marwari A.I.R. 1924 P.C. 198 which can be taken to overrule these previous decisions. We must therefore adhere to the view which has so far been strongly expressed by the High Court as we are not bound by the opinions expressed by the other High Courts.
20. Coming to the merits of this case: there has unfortunately been some confusion in the Court below, but as the matter has come up in appeal before us, and we are seised of the whole case, we can certainly put things right.
21. Strictly speaking, on the death of Mahadeo Pande the plaintiff got the name of Chander Deo substituted. The Court had jurisdiction to set aside an abatement if it were satisfied that there was good cause for the delay. When Chander Deo got the ex parte decree set aside it was open to him to satisfy the Court that the abatement also had been set aside without sufficient cause and without notice to him. The Court did find that Chander Deo had no information of the suit. It therefore obviously held that not only the ex parte decree which was passed behind his back should be set aside but that the substitution of his name which had been made on an application filed beyond time was also not binding upon him. We think that unless the plaintiffs can satisfy the Court that they were not aware of the death of Mahadeo till within three months of 30th January 1923, when they applied for the substitution of the name of Chandra Deo the suit must be deemed to have abated, and there is no good ground for setting aside that abatement.
22. As regards the heirs of Gobardhan Das and Shyam Sunder Das their fathers were alive when the preliminary decree was passed but that decree also has been set aside as against them on the ground that they had no notice of the suit. So far as they are concerned it must be assumed that the suit has been restored and their fathers were in the array of the defendants and are dead. The plaintiffs applied on 9th February 1928 to bring these objectors on the record as the legal representatives of Gobardhan Das and Shyam Sundar Das. The same rule applies and unless the plaintiffs can satisfy the Court that they had no knowledge of the death of these two defendants till within three months prior to 9th February 1928 their application would be beyond time and there would be no ground for setting aside the abatement. It is certainly open to the heirs of Gobardban Das and Shyam Sunder Das to plead that the suit has abated. The technical objection that a formal order directing the substitution of their names was passed forthwith on the very day of the application, namely 9th February 1928, cannot stand in their way as no proper opportunity had been given to them to object to it. It was assumed in the Court below that they would have a right to contest the suit on this ground when they filed their written statement. Inspite of these irregularities therefore we must hold that they are entitled to rely upon the abatement of the suit. The Court below has also found in their favour that they had no information of the suit. In view of certain previous proceedings the learned advocate for the plaintiffs is not in a position to suggest that they were not aware of the death of these persons till within three months of the date when they filed the application. In these circumstances the suit must be deemed to have abated as against defendants 2, 3 and 4, namely Gobardhan Das, Shyam Sunder Das and Mahadeo Pande. We accordingly dismiss the appeal with costs.