1. This is a revision petition at the instance of the legal representatives of one Nanhay Ram deceased. The said Nanhay Ram had instituted a suit against the respondent Nathi Lal for recovery of an amount due on a mortage. A decree was passed in that suit on 21st July, 1964 . According to both the parties before me this was a preliminary decree that I have been shown , does not appear to be a preliminary decree in the form contemplated by Order 34, Rules 4 and 5 of the Code of Civil Procedure. I am assuming however, for the purpose of this order that the decree is a preliminary decree. After the said decree had been passed, Nanhay Ram died on 22nd September, 1965, had elapsed.
Thereafter, an application was made by the present petitioners to be imp leaded in the suit under Order 22, Rule 3 of the Code. This application was contested by the respondent who was defendant in the suit, on the ground that Order 22, Rule 3 did not apply. The application for bringing the legal representatives on record in place of the deceased was dismissed for default on 1st January, 1965, but was restored on 12th January, 1965. In any case, the original application was within time and even if it was dismissed in default, it was restored. The objection of the defendant that the application was barred by time was disposed of by the trial court on the basis that there was n o time-limit for the impleading of the legal heirs once the preliminary decree had been passed and the objection that Order 22, Rule 3 was not applicable to the case was also rejected, but the application was dismissed solely on the ground that there could not be a substitution of legal representatives when no proceedings were pending before court.
The argument , which seems to have influenced the court below, appears to be that as the preliminary decree had been passed and no application for passing the final decree had been moved, the court was functus officio to pass any order under Order 22 , Rule 3. It is further implied in the court's order that the application for substitution could only be made after the application for a final decree had been made. However , the question would then arise as to who could make an application for a final decree when the original plaintiff had already died. Obviously, such an application could only be made by a party to the suit, who would have to be imp leaded in some way as a legal representative. The trail court does not, thereforee, seem to be right in coming to the conclusion that the application for substitution should have been made after the application for passing a final decree was made because it is only after the representatives had been imp leaded that they could be competent to move for a final decree . Hence the court is clearly not right in dismissing the application on that ground - but that is not the end of the matter.
2. After a preliminary decree has been passed, there is a conflict of authority as to whether Order 22, Rule 3 is applicable or not. It was decided by the Privy Council in Lachhmi Narayan Marwary v. Balmakund Marwary Air 1924 Pc 198, that once a preliminary decree had been passed, the suit could not be dismissed in default. This judgment has been interpreted in various ways by the various High Courts so as to mean that once a preliminary decree had been passed, the rights of the parties were crystallized by the preliminary decree and did not depend on the original rights which formed the basis of the cause of action in the suit and in applying this principle to a situation like the present, it has been held in the various decisions of the High Courts that in a suit in which a preliminary decree has been passed, there can be no abatement. One of the latest of these authorities is by the Rajasthan High Court, which is reported as Pooranchand v. Shriram, , and therein reliance is chiefly placed on the judgment of Beaumont C. J. in Dawarali Jafarali Saiyad v. Bai Jadi : AIR1940Bom318 , wherein the following observations were made:-
' Now where a preliminary decree has been passed, it seems to me that it is quite inappropriate to talk about the right to sue surviving. The rights of the parties are crystallised by the preliminary decree. The mortgage is established, the mortgagor has a right to redeem, and in default the mortgagee is given certain rights. It is no longer open to the plaintiff to sue in respect of his original cause of action; all he can do is to enforce his rights under the preliminary decree. No doubt, an application for a final decree is not technically an application in execution of the preliminary decree , but it is certainly not an application in respect of the original right to sue. It is an application to enforce the rights under the preliminary decree, and though the suit may be continued for that purpose, it seems to me inappropriate to refer to the right to sue as either surviving or not surviving .'
Following these observations, it was held that Order 22, Rules 3 and 4 did not apply. The same view was taken in Shanti Devi v. Khodai Prasad Singh : AIR1942Pat340 , Raghunandan Sahu v. Badri Ramjiwanji v. Hanmantram Raghunath 0065/1946 and Tara Pada Ray v. Shyama Pada Ray, : AIR1952Cal579 .
3. The contrary view was expressed by the Allahabad High court in its two judgments, reported as Anmol Singh v. Hari Shankar Lal : AIR1930All779 and Makund Lal v. Vhola Rai : AIR1931All419 . In the former case it was held that a suit did not terminate under the amended Code of Civil Procedure by the passing of a preliminary decree but continued to be pending in the court till the passing of the final decree. In the circumstances, it was held that Order 22 did apply to a suit even after a preliminary decree had been passed. In taking this view a number of authorities including the Full Bench decision of the Madras High Court reported as Perumal Pallai v. Perumal Chetty Air 1928 Mad 914 were distinguished. It was, however, pointed out in the judgment of the Rajasthan High Court aforementioned that after this judgment had been delivered the Allahabad High Court modified the provisions of Order 22 Rule 12 of the Code so as to make Order 22 inapplicable to a case like the present. thereforee, even in Allahabad as the law stands today, there is no necessity to bring an application under Order 22, Rules 3 and 4 after a preliminary decree has been passed . There is, thus, a uniformity in the law applicable to the situation, which has arisen in this case throughout India now. Hence, once a preliminary decree has been passed, there is no necessity to make an application under Order 22, Rule 3 to implead the legal representatives of a deceased plaintiff and there is no time limit to implead such representatives.
4. The question still remains as to what should be done in the circumstances of the present case as Order 22, Rule 3 is not applicable in view of the statement of law that I have summarised above and also Order 21, Rule 16 is not applicable as the state of execution has not arrived. How are the legal representatives to proceed with the case after the plaintiff has died before the final decree has been applied for, but after the preliminary decree has been passed It seems to me that this situation can only be met by passing an order section 151 of the Code of Civil Procedure allowing the legal representatives to be imp leaded in place of the deceased plaintiff so that they may be in a position to move the court for passing for a final decree.
That, in my opinion, is the proper order to be passed in the circumstances of the case; otherwise there is a lacuna in the Code of Civil Procedure in respect of the situation in which the legal representatives of the plaintiff are placed in this case. I think that this is a fit case in which the revisional jurisdiction of this court should be applied or the order proposed by me may be considered to be one under Article 227 of the Constitution of India . I, thereforee, order that the legal representatives of Nanhay Ram deceased, who are the petitioners in this revision petition, be imp leaded in his place in his place in the suit and they will be entitled to take part in further proceedings in respect thereof. In the circumstances of this case there will be no order as to costs.
5. Petition allowed.