R.C. Mitter, J.
1. In the year 1927, the plaintiff opposite party instituted a suit for partition and accounts against a number of persons. The preliminary decree for partition and accounts was passed in favour of the plaintiff on 19-2-1929. Since then the plaintiff took no steps to prosecute the suit further till the year 1945. As the preliminary decree had already been passed the suit could not be dismissed for the failure on the part of the plaintiff to take further steps in the matter. See the case in Lachmi Narain v. Balmukund 11 A.I.R. 1924 P.C. 198. On 4-12-1945, the plaintiff asked the Court to appoint a commissioner for the purpose of preparing allotments and to take accounts in accordance with the directions made in the preliminary decree which had been passed as long back as 19-2-1929. Defendant 1 in the suit, however, died in December 1912. The plaintiff made an application to the Court on 17-12-1945, to bring on the records of the suit the legal representative of defendant 1. The Court passed an ex parte order on 18-1-1946, for bringing on record the legal representatives of defendant 1 as had been prayed for by the plaintiff in his application of 17-12-1945. Thereafter the legal representatives of defendant 1 who had been brought on the record in place of defendant 1, appeared and objected, to the order of 18-1-1946, by which they had been brought on the record. They raised two other objections also, viz., (a) that the application for making the decree final was. hopelessly out of time inasmuch as Article 181, Limitation Act, was applicable and (b) that inasmuch as defendant 1 was dead, they, his legal representatives, were not bound to render accounts in the same manner as defendant 1 and in terms of the preliminary decree. The learned Subordinate Judge overruled the first and the second objections raised by the legal representatives, viz., that they could not be brought on the record as defendant 1 had died more than 90 days before the application to put them on record and that the application for final decree was barred by limitation. He made certain observations with regard to the third objection raised by them, viz., whether accounts were to be taken from the legal representatives of defendant 1, in the same manner as it could have been taken against defendant 1 if he had been alive. The plaintiff who may have been aggrieved by this observation however, did not move this Court. Whether the view taken by the learned Subordinate Judge on this point is correct or not will have to be considered hereafter, when the observations made in Brij Kishore Singh v. Nazuk Bai : AIR1948Cal19 as to effect of the death of the person liable to render accounts after the preliminary decree had been passed would have to be considered. We delete those observations in order that the question may be fully considered, at a later stage of the suit.
2. In this rule, which has been obtained by the legal representative of defendant 1 we will now consider the other two points, and examine whether the view which the learned Subordinate Judge has taken on those two questions, which we have noticed above, is correct or not.
3. The facts, as we have already stated, are that a preliminary decree in the suit for partition and accounts had been passed. There was no appeal against that decree and that preliminary decree is conclusive. After the passing of the preliminary decree one of the defendants died and the application to bring his legal representatives on the record was made beyond 90 days; of his death. If the case comes under Order 22, Rule Civil P.C., then the order made by the learned Subordinate Judge on 18-1-1946, bringing on record the said legal representatives is a wrong, order, for, by that time the suit would have abated against those legal representatives and a proper application would have been required on the part of the plaintiff to set aside the abatement on satisfying the Court that there were good grounds for not making the application, earlier and within 90 days of the death of defendant 1. If, however, the case does not come within the terms of Order 22, Rule 4, it would come within the terms of Order 22, Rule 10. The relevant portion of that rule runs as follows:
In other cases * * * * of devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has one or devolved.
The words 'other cases' occurring in that rule mean cases other than provided for in Rules 3, 4 and 8 of that Order. For the case before us Rule 8J is not relevant and we need not in this case quote the words of Rule 3 of Order 22 for in this case. We are concerned with the death not of a plaintiff but of a defendant. The relevant portion of, Rule 4 is in these terms:
Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
The period of limitation for making an application under this rule is 90 days from the death. Sub-rule (3) of Rule 4 runs as follows:
Where within the time limited by law no application is made Under Sub-rule (1), the suit shall abate as against the deceased defendant.
This rule contemplates the stage of a suit before the decree is passed. That is indicated by the phrase 'right to sue.' After a decree has been passed, it cannot be said that the plaintiff has still a right to sue, for, on the making of the decree, the rights of the parties are settled and defined by the decree. They acquire rights on the basis of the decree or incur liabilities fixed by the decree and those rights and liabilities remain unless or until the decree is varied or set aside. This is the principle which has been laid down by the Judicial Committee in Lachmi Narain v. Balmukund 11 A.I.R. 1924 P.C. 198. When a preliminary decree has been passed it seems to us that it is quite inappropriate to talk about the 'right to sue' surviving, which is the phrase used in Sub-rule (1) of Order 22, Rule 4. On that view of the matter we hold the cases of the type which we have before us do not come within the provision of Order 22, Rule 4, and for the same reason within the provision of Order 22, Rule 3. According to the language of Order 22, Rule 10, those cases where death occurs after the preliminary decree must come within that rule, viz., Rule 10 and there is no period of limitation fixed with regard to matters coming under the said rule. This view of ours would not create any inconsistency where the death of a party occurs during the pendency of an appeal for, in that case, the words 'right to appeal' will have to be substituted by reason of the provisions of Rule 11 in the place of the words 'right to sue' occurring in Rules 3 & 4. The view that we are taking is the view that has been adopted in all the High Courts excepting in the later decisions of the Allahabad High Court: Mahabir Singh v. Dip Narayan : AIR1931All490 . The point was considered by the Full Bench in Madras: Perumal Plllai v. Perumal Chetty 15 A.I.R. 1928 Mad. 914 by a Division Bench in Bombay Dowarali Jafarali v. Baijadi : AIR1940Bom318 . by the Rangoon High Court in Muthiah Chettyar v. Tha Zan Hla 20 A.I.R. 1933 Rang. 318 by the Nagpur High Court (Full Bench) in Bapu v. Gulab Chand by the Lucknow High Court in Kalu Rarn v. Gaya Din ('27) 14 A.I.R. 1927 Oudh 561 by the Lahore High Court in Rahim Baksh v. Walaiti Ram ('30) 17 A.I.R. 1930 Lah. 329 and by the Patna High Court in Shanti Devi v. Khodai Prasad Singh ('42) 29 A.I.R. 1942 Pat. 340.
4. The question was considered by this Court on some occasions. The earlier cases, i.e. cases which were decided before the decision in Lachmi Narain v. Balmukund 11 A.I.R. 1924 P.C. 198 took the view that such cases would come within Order 22, Rule 3 or 4, as the case may be. We mention two cases which had taken that view: Bhuthnath Jana v. Tara Chand Jana 8 A.I.R. 1921 Cal. 551 and Manujendra Dutt v. Jnan Ranjan 13 A.I.R. 1926 Cal. 308. The matter was again considered by this Court after the decision of the Judicial Committee in Lachmi Narain v. Balmukund 11 A.I.R. 1924 P.C. 198. In Nazir Ahammad v. Tamijaddi Ahammad : AIR1929Cal430 where a Division Bench of this Court followed the Madras High Court's decision in Perumal Pillai v. Perumal Chetty 15 A.I.R. 1928 Mad. 914 it was expressly held that neither Bhuthnath Jana v. Tara Chand Jana 8 A.I.R. 1921 Cal. 551 nor Manujendra Dutt v. Jnan Ranjan 13 A.I.R. 1926 Cal. 308 could no longer be considered to be good law in view of the observations made by the Privy Council in Lachmi Narain v. Balmukund 11 A.I.R. 1924 P.C. 198. The question was again considered by a Judge of this Court sitting singly in Harihar Prosad v. Umesh Chandra : AIR1933Cal798 and the view expressed in Nazir Ahammad v. Tamijaddi Ahammad : AIR1929Cal430 was followed. A Division Bench of this Court again followed that decision. That case is reported in Priyabala Dassi v. Sarajubala : AIR1936Cal540 . The decision of another Division Bench in Janakinath Singha v. Nirodbaran Ray : AIR1930Cal422 has been cited by the learned advocate appearing for the petitioner in support of his contentions. There, however, the question that we are considering was neither raised nor considered. There a preliminary decree had been passed in a suit for mesne profits which had been instituted when the Code of Civil Procedure of 1882 was in force. The preliminary decree was passed after the Code of Civil Procedure of 1908 had come into force. The first point that was canvassed and was answered was whether the provisions of Order 20, Rule 12, Civil P.C., 1908 was to be followed or the amount of mesne profits was to be ascertained in execution proceedings which was the procedure under the Code of 1882. The Division Bench held that the provisions of Order 20, Rule 12 will have to be followed notwithstanding the fact that the suit for mesne profits had been instituted before the Code of 1908 had come into force. After the passing of the preliminary decree one of the defendants had died and the plaintiff himself made an application in the suit for setting aside the abatement. That application was refused by the Court of first instance on the ground that he had not made out a good case for setting aside abatement. His contention in the appeal was, however, that mesne profits had to be ascertained in execution proceedings and so in view of Rule 12 of Order 22, Order 22, Rule 4 was inapplicable. That was overruled. B.B. Ghose and Panton JJ. held, as we have already stated, that the final decree will have to be made in accordance with the procedure laid down in Order 20, Rule 12, Civil P.C., 1908, therefore, the suit was pending and so the rules with regard to abatement of a suit would apply to the case before them as is provided for in 4 of Order 22, Civil P.C., 1908. The question, whether the application made in that case would an application which would come in within Order 22, Rule 4, Sub-rule (1) or within Order 22, Rule 10, Civil P.C., 1908 was neither raised considered or decided. The only point that as argued, as we have already said, was where the mesne profits were to be ascertained in execution proceedings or in the suit itself, and it was assumed that if they had to be ascertained in the suit itself Order. 22, Rule 4 would be applicable.
5. In view of the decisions of two Division Benches of this Court which are binding on us, and in view of the fact that all other High Courts except the Pull Bench of the Allahabad High Court in Mahabir Singh v. Dip Narayan : AIR1931All490 have taken the view which is in accordance with the view we are taking, we do not think that we would be justified in accepting the contention of the petitioner before us on the first point.
6. Article 181, is the residuary Article relating to applications. In a mortgage suit it has been held that the application for a final decree has to be made within 3 years by reason of Article 181, Limitation Act. But those decisions are not helpful because Order 34, Rule 4, Civil P.C., expressly requires the mortgagee to make an application for a final decree, either for foreclosure or for sale. In a suit for partition and/or accounts a party need not make an application for making the decree final. After the preliminary decree in such a suit has been passed it is the usual practice for the plaintiff to make an application for the appointment of the Commissioner but there is no legal bar in the Court appointing the Commissioner suo motu and asking the plaintiff to deposit the Commissioner's fees in Court. If he does not deposit the fess any other party to the suit can do so and take upon himself the carriage of the proceedings. If the plaintiff and none of the other parties make the deposit the fact that the Court would not be able to dismiss the suit is, however, another matter.
7. We, therefore, do not see our way to accept the petitioner's contentions on this point also.
8. The result is that the rule is discharged but in the circumstances without costs.
K.C. Chunder, J.