1. This application for review and the connected second appeal arise out of a suit for pre-emption. The second appeal, in this suit came before one of us on the 15th of April, 1907, with the result that the suit was decreed subject to the payment of the purchase-money. It now transpires that at the date this judgment was given one of the respondents was dead. The judgment, of course, was passed in ignorance of his death. It is admitted that the suit was one in which the cause of action did not continue against the surviving defendants. It was necessary to bring on the record the representatives of the deceased respondent. The respondent died on the 28th of October, 1906. An application for execution of the decree was made on the 24th of August, 1907. Possession was obtained on the 3rd of September, 1907. Imam-ud-din and Karim-ud-din applied to the execution Court to set aside the execution on the ground that the decree having been passed after the death of Nanhoo was void and of no effect. There was a similar application about the same time by the wife and children of Nanhoo. The Court set aside the execution as to the share of Nanhoo deceased, but refused to set aside the execution as against the other judgment-debtors. This decision was confirmed on appeal. The second appeal before us is the appeal by Imam-ud-din and Karim-ud-din against so much of the order as allowed the execution to stand against them. They contend that the decree was invalid and could not be executed in part. It seems to us that the proper course for the plaintiff decree-holder to have taken was, as soon as possible after it was discovered that Nanhoo was dead, to have applied to this Court to bring on the record the representatives of Nanhoo and to re-hear the appeal. Instead of taking this course, he attempted to execute the decree. The present application purports to be under Order 47, Rule 1 of Act V of 1908, i.e., an application for review of judgment by a person considering himself aggrieved. We must remark at once that the time limited for such an application is 90 days from the date of the decree. The present application was not made until the 23rd of January, 1909, nearly two years after the decree. Even if we were to treat the application as one to bring on the record the representatives of Nanhoo deceased, such an application should have been made within six months of the death. The applicant having taken the course he did take, we see no reason for extending limitation even assuming that we have the power to do so.
2. We now have to deal with the appeal. Mr. Agarwala on behalf of Sadarat Rai, contends that the execution should be allowed to stand against those persons who were on the record at the time the decree was passed and cites in support of his contention the case of Imdad Ali v. Japan Lal 17 A.478. In that case, as in the present case, a decree had been passed against a deceased judgment-debtor in ignorance of the fact of death. The representatives in execution objected and the Court held, that the question was one which properly arose under Section 244 of Act XIV of 1882. The execution was set aside as against the representatives of that deceased and it was allowed to stand as against the other judgment-debtors. In that case the decree was clearly treated as being capable of execution against some of the judgment-debtors to the exclusion of the representatives of the deceased. The question was not argued that it was a judgment which could be only executed in whole or not at all. The decree in the present case was a decree for pre-emption and the entire property, if it was a good decree regularly made, could have been taken in execution. In the case of Raj Chander Sen v. Ganga Das Seal 31 C. 487 (P.C.) : 8 C.W.N. 442 the respondent to whom money was due under a decree died pending an appeal from the decree. No application was made to have the representatives substituted within six months and no sufficient cause was shown for the delay. Their Lordships of the Privy Council held that the suit being one in which the cause of action did not survive against the remaining respondent, the appeal abated. Applying this ruling to the present case, it is quite clear that as no representatives were brought on the record in the place of Nanhoo the appeal abated. In our judgment the decree which was passed on the 15th of April, 1907, was not capable of being executed either against the surviving judgment-debtors or the representatives of Nanhoo. The present application fails and is dismissed with costs.'
3. In the appeal the following judgment of the Court was delivered by
4. For the reasons given in our judgment on the application of Sadarath Rai for review of judgment we allow this appeal and set aside the order of both the Courts below so far as they refuse to restore the property to the judgment-debtors on the condition that Imam-ud-din and Karim-ud-din do first re-pay the amount of money received by them from the decree-holder. The appellants will have their costs.