1. The plaintiff in this case sued for a declaration that the final decree obtained by defendants Nos. 1 to 4 in suit No. 85 of 1915 was invalid and inoperative against the plaintiff and for a permanent injunction restraining them from executing it against him.
2. The first point raised in the lower Court was whether such a suit would lie, simply on the ground that the notices were not properly served on the defendants. The lower Court, relying on the decision in the case of Ibrahim v. Juauf (1919) 22 Bom. L.R. 798, held that a party, against whom a decree was passed ex parte, could seek to set it aside by an application under Order IX, Rule 13, Civil Procedure Code, or could appeal from the decree, but it was not competent to him to start a fresh proceeding to set aside the decree. This point is not raised before us in appeal.
3. There were two other grounds on which the decree sought to be executed was impugned by the plaintiff in the lower Court, first, on the ground that as Maneshwar died on May 30, 1920, and the final mortgage decree was made on November 25, 1921, without bringing his heirs on the record, the decree was a nullity so far as Maneshwar was concerned and that the whole suit abated against all the defendants, and, secondly, on the ground that the decree was obtained by fraud. Before us no question was raised on the ground of fraud. The only question, therefore, in this appeal is whether the decree was invalid on account of the death of Maneshwar and on account of the omission to bring the legal representatives on the record in place of the deceased Maneshwar. As the other defendants were members of the joint Hindu family of the deceased Maneshwar, the cause of action would survive against them as the surviving members of the joint family under Order XXII, Rule 2, Civil Procedure Code :-
Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.
4. The suit, therefore, would not abate as against the surviving members of the joint family. Reliance was placed on the decision in the case of Lilo Sonar v. Jhagru Sahu ILR (1924) Pat. 853 In that case one of the legal representatives of the deceased respondent was on the record and the other legal representatives were not parties to the appeal. The view taken in Lilo Sonar's case that the legal representatives must be brought on the record irrespective of the question whether the deceased was joint with other members of the family who are on the record is opposed to the decision of the Calcutta High Court in Chowdhry Shamanwnd Das v. Rajnarain Das 11 C.W.N. 186. In Gopal Das v. Mul Chand ILR (1926) Lah. 399, where one of the plaintiffs-respondents died and no application was made to bring his legal representatives on the record within time, and where the deceased was a Hindu minor and his legal representatives were his brothers who were respondents with him and the right to obtain relief survived against them alone, it was held that Order XXII, Rule 2, applied and that it was not necessary to make an application under Rule 4 and that the appeal did not abate. The same view was taken in the eases of Maung Po v. Ma Shwe Ma ILR (1924) Ran. 445 and Achutan Nair v. Manavikraman ILR (1928) Mad. 347. We think, therefore, that the suit did not abate as against the other members of the joint family who were already on the record as defendants.
5. It is, therefore, unnecessary to consider the further question whether Order XXII, Rules 3 and 4, apply to cases of the death of the parties after passing of the preliminary mortgage decree. The Full Bench of the Madras High Court in Perumal Pillay v. Perumal Chetty ILR (1928) Mad. 701 has held that Order XXII, Rules 3 and 4, do not apply to cases of the death of the parties after passing of the preliminary decree.
6. We think, therefore, that the view taken by the lower Courts is right and both the appeals must be dismissed with costs.