1. It is necessary to state the following facts: In November, 1851 Ghumraj Kai executed a mortgage by conditional sale of certain property in the village of Pipra Kalan, in the Ballia district, in favour of Sheo Saran Upadhiya. In 1915 the mortgagor was represented by Sukhdao Rai and the mortgagee was represented by a certain Lachhman. Lachhman instituted a suit for foreclosure against Sukhdeo Rai. A preliminary decree was passed on the 15th of July, 1.915 by consent of parties under the terms of which Sukhdeo Rai was given six months within which to pay Rs. 1,104-15, find, in default of such payment, the land mortgaged was to pass to Lachhman. No application was made for a final decree and in 1918 Sukhdeo Rai died. It is suggested that the reason why no application was made for a final decree was because Lachhman had already obtained possession of the property by a private arrangement with Sukhdeo Rai. After the death of Sukhdeo Rai, certain people claimed to be his heirs in respect of this ' property. Lachhman then applied for the preparation of a final decree He had to ascertain who was the legal representative of Sukhdeo Rai. This was clearly not an easy task for many persons had put themselves forward as the heirs of Sukhdeo Rai. Sukhdeo Rai belonged to the Rudra Rai branch of the family and he was the sole survivor of that branch, and his heirs had to be found in Dina Nath Rai branch of the family. To any person acquainted with the circumstances of the Ballia district, it will be seen that Lachhman was in a position of real difficulty in discovering who Sukhdeo Rai's heirs would be. He finally put forward Mahdeo Rai as Sukhdeo Rai's successor. Mahadeo Rai did not contest the position that he was the representative and a final decree was passed on the 12th of April, 1919. On the 10th of May, 1921, a certain Dip Narain Rai instituted a suit in the Court of the Subordinate Judge of Ghazipur for possession of this property as of right or, in the alternative, for possession of this property by redemption of the mortgage on the ground that he had succeeded to a portion of the property of Sukhdeo Rai. The Subordinate Judge decided that he was not an heir and dismissed his suit. An appeal was then filed before the District Judge who found that Dip Narain Rai was an heir but that his suit must fail as the proceedings were finally concluded by the final decree of the 12th of April, 1919. Dip Narain Rai has preferred this second appeal.
2. The point for decision is briefly as follows: When a judgment-debtor, under a preliminary decree for foreclosure, has died between the passing of the preliminary decree and the final decree and the decree-holder has honestly substituted the parson whom he believes to be the sole representative of the judgment-debtor and that parson has accepted the position, and when a final decree for foreclosure has subsequently bean passed can a person who had a right to be a co-representative of the judgment-debtor's estate and had as such a right to redeem the property, enforce a right, to redeem subsequent to the passing of the final decree. There is no direct authority upon this point. In order to decide it, we have to examine certain considerations. The law as to the representation of a deceased defendant before the passing of a, decree contained in Order 22, Rule 4 of the Code of Civil Procedure. This rule reproduces, with no change of principle, Section 368 of She old Code ' as amended in 1888. The law in respect of substitution of the representative of a deceased defendant may be shortly stated as this. It is in the first instance for the plaintiff to bring the representative of a deceased defendant upon the record. If he does not do so within 90 days of the date of the death, his suit abates under the provisions of Article 177, Schedule I of the Indian Limitation Act as amended in 1920. While it is obligatory upon the plaintiff to discharge this duty in so far as he is capable of doing so, any person who has not been so substituted by the plaintiff who claims to be interested as a representative of the deceased defendant, has a right to come before the Court and claim to be substituted as such representative. It has been held in particular instances that, when the plaintiff has, in such circumstances, made an honest and intelligent endeavour to secure such representation, the estate is ordinarily sufficiently represented for certain purposes.
3. There is nothing in the Code or in the orders which explicitly cover the case of the substitution of the representative of a deceased judgment debtor but the principles already enunciated undoubtedly govern such substitution. When a mortgagor judgment-debtor dies during the period that elapses between a preliminary decree for foreclosure and a final decree for foreclusure, it may well happen that a person who claims to be his representative and has not been made his representative, may have a grievance. It may be that through no fault of his he is deprived of the knowledge that such a decree exists. This is practically the position taken up by the appellant in this appeal. Against this it may be said that on the principles which we have already enunciated it is open to the representative of a deceased judgment-debtor, whose name has been inadvertently omitted from the array of parties, to come forward and to apply that his name should be added. Dip Narain Rai does not seem to have suggested that he had no knowledge of the proceedings. He says that he was very ill at the time they took place. The District Judge does not believe him on this point.
4. There is no direct authority upon the subject but two decisions have been quoted to us by the learned Counsel for the respondents which have a bearing upon the point. The earlier of these decisions is contained in Kadir Mohideen Marakkayar v. N.V. Muthukrishna Ayyar (1902) 26 Mad. 230. The Bench which decided this appeal upheld the validity of a transfer of a sale made under a final decree on a mortgage. The mortgagor was a man called Kadir. He died before the passing of the decree. One of his sons was substituted as his hair on the application of the plaintiff and the decree was passed against that son as sole defendant. That son's name appeared alone as defendant both in the proceedings up to the preliminary decree and in the proceedings up to the final decree. It was subsequently found that there was a second son who ought also with others to have been named as a representative of the deceased Kadir. But the Bench held that it was not open for the second son or his representatives or successors to question the validity of the transfer in any way as the estate of the deceased had been sufficiently represented for the purposes of the suit, and in the absence of any fraud or collusion, the decree bound the estate. The Bench was of opinion that the son had sufficient remedy in the power to apply to be joined as a representative,
5. In a subsequent decision of their Lordships of the Privy Council, in Khiarajmal v. Daim (1904) 32 Cal. 296, their Lordships held that when a Muhammedan had died and three out of four of his legal representatives had been brought on the record in his place while the name of the fourth had been inadvertently omitted, the estate was sufficiently represented for the purposes of the suit and that no right of redemption remained.
6. After consideration, accepting the principles laid down in the above decisions, we decide this appeal as follows:
We consider that the proceedings for substitution of the name of the deceased Sukhdeo Rai were honest and correct, that the decree-holder legitimately did all what he could be properly expected to do and that the decree of the 12th of April, 1910, concludes the matter.
7. We therefore dismiss the appeal with costs.