Natesa Pillai vs Kannammal Anni and Others

The appellant claims to be the legal representative of the plaintiff, who obtained a preliminary decree, in a mortgage suit, in O.S. No. 97 of

1912.

The plaintiff admittedly had died before this appellant applied on 29th, November, 1915, to be recognized as the heir of the plaintiff and to get

final decree passed.

His application was dismissed oil 9th February, 1916, on account of his absence.

As he did not get himself brought on the record at that time, the suit abated under Order 22 Rule 3. of the Code of Civil Procedure, upon six

months expiring after the plaintiff''s death, and so he did not apply subsequently to have the abatement set aside, the present application presented

on 10th October, 1918, is out of time and incompetent.

It is true that the District Munsif erroneously held that the suit had not abated, because the plaintiff''s death occurred between the passing of the

preliminary and the final decrees. But this Court has held in Lakshmi Achi v. Subbarama Ayyar [1915] 39 Mad. 488 that the suit is continued till

the stage of final deeree is reached: see also Subbarayudu v. Ramadasu 1923 Mad. 237, which is a direct authority for holding that after the

abatement of the suit an application to pass a final decree, which is not made within the time provided by law, sh raid be dismissed as time barred.

This Civil Miscellaneous Second Appeal is therefore dismissed with costs.