1. This is a plaintiff's appeal from a final decree dismissing their suit for foreclosure.
2. The relevant fact are as follows: one Ghasilal had obtained a mortgage of the property in suit from the defendant No. 1 Mahabir Prasad, who is now dead, and is represented before us by his legal representatives, respondents 1(a) to 1(f). Ghasilal was indebted to the plaintiffs and therefore he transferred his mortgagee rights in their favour. The plaintiffs thereupon instituted a suit in the year 1941 in the Court of the Sub-Judge First Class, Bhandara, for enforcement of their mortgage. The claim of the plaintiffs was decreed in full and a preliminary decree for Rs. 11396/8/- inclusive of costs was passed in their favour. The time for redemption expired on 12th February 1943, thereupon the plaintiff made an application for passing a final decree for foreclosure. Along with the application was made by Jagdish Prasad, one of the original plaintiffs, stating that the original plaintiffs 1, 6, 9, 11 and 13 had died and that therefore their legal representatives should be brought on record. We are only concerned here with the plaintiff No. 13 Jamnalal. It was stated in that application that the plaintiff No. 13 died about a year-and-a-half prior to the date of the application. This application is dated 24-7-1945. Therefore, the averment in the application must be taken to mean that Jamnalal died in the year 1944 or so. In reply to that application, it was stated on behalf of the defendant Mahabir Prasad that the plaintiffs 1, 6, 9, 11 and 13 died long ago, that the application for substitution of the legal representatives was not filed within time and that the preliminary decree had abated as a whole, or, at any rate, in so far as the interest of the decreased plaintiffs were concerned. The learned Judge held that the plaintiffs other than Jamnalal died after the passing of the preliminary decree and that therefore there was no question of abatement. he however held that Jamnalal died on 10-4-1942 but as the preliminary decree was passed on 12-6-1942, the suit had abated so far as his interest was concerned. Further the suit being a mortgage suit the fact that it had abated in so far as one of the mortgagees is concerned resulted in the abatement of the whole suit and that consequently the preliminary decree was a nullity. Eventually the learned Judge passed the following order:
'I accordingly order that a final decree be drawn up ordering that the suit be and has abated and that the application for final decree is dismissed.'
Consequent on this, a decree dismissing the suit was drawn up. It is against this decree that the plaintiffs have come before this Court.
3. It is contended before us on behalf of the plaintiffs that a preliminary decree having been passed in the case it could not be treated as a nullity by the Court by reason of the fact that according to the enquiry made one of the plaintiffs was found to have died prior to the passing of the preliminary decree. It is also contended that if at all any abatement had taken place that was with regard to the interest of Jamnalal alone and would not result in the abatement of the whole suit.
4. It has been observed by their Lordships of the Privy Council in lachmi Narain Marwari v. Balmakund Marwari, ILR Pat 61: AIR 1924 PC 198.
'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 marking of the decree, acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. After a decree any party an apply to have it enforced.'
It has been held by their Lordships of the Privy Council in several cases as, for instance, malkarjun Bin Shidramappa Pasare v. Narhari Bin Shivappa, (27 IA 216) that a Court has jurisdiction to decide a matter rightly or wrongly and that merely be cause the Court has decided a matter wrongly the decree cannot be treated as a nullity.
5. It is however contended by Shri Mangalmurti that by virtue of the provisions of rule 3 of Order 22 of the code of Civil Procedure, where a plaintiff dies and his legal representatives are not brought on record within the time allowed by law, the suit in so far as he is concerned automatically abates and that where the suit is a mortgage suit the whole suit would automatically abate and that consequently the decree passed by the Court in ignorance of the fact of abatement is a nullity and should be treated so at every stage. In our opinion, that is not quite what rule 3 of Order 22 says. Sub-rule (1) of Rule 3 is as follows:
'Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue scurvies, the Court, on an application made in that behalf, shall cause the legal representative of the decreased plaintiff to be made a party and shall proceed with the suit.'
'Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the decreased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the cost which he may have incurred in defending the suit to be recovered from the estate of the decreased plaintiff.'
It will be clear from these provisions that the Court has to find the following facts: (i) that one of several plaintiffs had died and (ii) that the right to sue does not survive to the surviving plaintiff. The question as to when a plaintiff died is one of fact and has to be alleged and proved. Similarly, the question whether the right to sue does not survive to the surviving plaintiff is also one of fact and has to be decided by the Court. Now, unless these questions are raised before a Court at the appropriate time, it is not possible for it to decide them. If in such a case the Court proceeds with the case in ignorance of the fact of the death of a person and passes a decree, that decree cannot be treated as a nullity. It may be a wrong decree but it will have to be set aside by taking appropriate proceedings as would have been the case had the points been raised but wrongly decided by the Court. It cannot be simply ignored nor can the Court refuse to make it final. As already pointed out, where a decree is passed by a Court certain rights accrue to the party in whose favour the decree has been passed and those rights cannot be set at naught except by following the procedure which is by way of an appeal or a review. In the instant case, no attempt was made by the defendant to challenge the decree either by way of a review or by preferring an appeal. It seems to us that it is no longer open to the defendant to say that Jamnalal died before the preliminary decree was passed. That was a matter which had to be agitated by the defendant before the decree was passed. Unless we hold that the matters which have been decided before the preliminary decree was passed cannot be reopened subsequent to the passing of the decree and unless we hold that the matters which properly ought to have been raised before the passing of the preliminary decree cannot be allowed to be raised after the decree was passe,d there will be no finality to the decisions of Courts and that would be against principle. In our view, therefore, it was not open to the Court before whom the application was made for making the decree final at all to consider whether Jamnalal died before the preliminary decree was made. An application was made on behalf of the legal representative of Jamnalal for being brought on record in his place but since it was not granted. In our view, therefore, the plaintiffs are entitled to a final decree. Accordingly, we allow the appeal with costs set aside the decree of the lower Court and remit the matter to it for being proceeded with further according to law. Costs will abide the ultimate result.
6. We may mention that a number of cases were cited on both sides in support of their respective contention whether the appeal abates as a whole or in part. But upon the view we have taken it is not necessary to consider any of these authorities.
7. Appeal allowed.