Murray Coutts Trotter, Kt., C.J.
1. The short point in this case arises in this way. The plaintiff obtained a preliminary decree in a mortgage suit on the 18th November, 1921. He then died on the 25th February, 1922, before a final decree had been passed. No application had been made or acceded to within three months of the plaintiff's death to add his legal representatives to the record. It is contended that in the circumstances the suit must be deemed by the provisions of Order 22, Rule 3, to have abated. The question referred to us is whether on a proper construction of the authorities that is the true position. The most illuminating principle which should guide us appears to me to be contained in the case of Chapman v. Day (1883) 48 L.T. 907 tried before Pollock, B., and Justice Lopes, J., and the passage that appears to put it very shortly is contained in the judgment of Lopes, J.
It is said that, the defendant having died, the maxim Actio personalis moritur cum persona applies, I think it does not apply in such a case as this. I think 'action' means 'right of action' and if that is the true way of looking at it, the right of action here had been determined before the death of the defendant.
2. Applying that principle, it would appear that the right of action as there defined by the learned Judge is determined by a preliminary decree because the final decree is only by way of working out in detail the principles laid down and determined in the preliminary decree. The decision in Chapman v. Day (1883) 48 L.T. 907 has been followed and applied in this country in the case of Gopal v. Ramachandra I.L.R. (1902) B. 597. There was a difference of opinion at the outset, then Crowe, J., was called in and he based his judgment on the decision in Chapman v. Day I.L.R. (1921) M. 872 : 1921 42 M.L.J. 301. In Madras a contrary view seems to have been taken and there is no doubt about it that Subbarayudu v. Ramadasu I.L.R. (1921) M. 872 : 1912 42 M.L.J. 301 is a definite position adverse to the respondents in this reference. The learned Judges who referred this case to us thought that by implication the authority of Subbarayudu v. Ramadasu I.L.R. (1921) M. 872 : 1921 42 M.L.J. 301 had been very much shaken by the Privy Council's decision in Lachmi Narain Marwari v. Balmakund Marwari Without discussing that case in detail, it seems clearly to proceed on the basis that a preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working out of accounts and so forth is a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally determined (subject, of course, to appeal) in the preliminary decree. We think that the principle underlying that case where after preliminary decree the plaintiff did not appear when the case came on for final decree and the case was struck out, a course which the Privy Council disapproved on the grounds we have mentioned, applies by analogy just as much to a case where a man does not appear because he cannot appear since he is dead. In our opinion all that is really important in these matters is to have a settled rule of practice. The present case is obviously a casuo omissus from the Code of Civil Procedure and probably nobody had thought of providing for it. In these circumstances all that is important is that we should endeavour to formulate the most logical rule we can and follow as best we may the nearest analogies. We therefore think that Subbarayudu v. Ramadasu (1921) I.L.R. 45 M. 872 : 42 M.L.J. 301 is no longer good law and we must answer this reference by saying that in our opinion Order 22, Rules 3 and 4 do not apply to the present state of circumstances. The case will be referred back to the Division Bench with that opinion.