Probhat Coomar Mukherji vs Birendra Nath Dey

P.N. Mookerjee, A.C.J. and Amiya K. Mookerji, J.—This rule was obtained by the Petitioners who were the Defendants in the connected mortgage suit against an order of the learned trial Judge holding, inter alia, that the suit had not abated as claimed by the Petitioners.

For our present purpose, it is enough to say that the instant suit was the suit on mortgage in which a preliminary decree had been passed. Thereafter, it appears, the original Defendant died and an application was made by the Plaintiffs for bringing on the record his legal heirs. This application, however, was made beyond ninety days and an objection was taken that, in the circumstances, the suit must be held to have abated as the application must be taken to be one under Order 22, Rule 4 of the Code of Civil Procedure.

The learned trial Judge overruled this objection upon the view that a suit after the preliminary decree cannot abate and the application for substitution must, in the circumstances, be taken to be one u/s 151 of the Code. The propriety of this view is challenged in this Rule.

It is well-settled on the authorities that after the decree a suit cannot abate as the right to sue or the cause of action merges in the decree. This is also the case where a preliminary decree has been made, and after or on the passing of the preliminary decree the cause of action or the right to sue merges therein and no longer exists separately and further proceedings follow upon the said decree. In the circumstances, the question of abatement would not arise. If reference is necessary to authorities, it is enough to cite the decision of this Court in Bhusan Chandra Mandal v. Chabimoni Dasi and Ors. 53 C.W.N. 582 where all the earlier authorities, including the leading decision of the Judicial Committee in Lachmi Narain Marwari and Ors. v. Balmukund Marwari and Anr. 51 I.A. 321 were noted and considered.

Mr. Mitter placed before us the earlier decision of this Court in Bhutnath Jana v. Tara Chand Jana and Ors. 25 C.W.N. 595. But this decision, as observed in the above-cited later decision of this Court and the earlier Bench decisions, following the above Privy Council decision, was no longer good law after the said decision of the Judicial Committee.

In the above view we discharge this Rule.

We do not, however, express any opinion on the question whether, in spite of the fact that the suit has not abated, the Plaintiffs would in the circumstances of this case be entitled to a final decree. That will be a matter to be considered by the learned trial Judge at the appropriate stage in accordance with law in the light of the materials then before him.

Subject as above, this Rule fails and it is discharged.

There will be no order for costs.

Let the records go down as quickly as possible.