S.K. Ghose, J.
1. This appeal arises out of a suit for recovery of possession of certain land on a declaration of the plaintiffs title thereto under the following circumstances: The land originally belonged to one Kuran Samal who mortgaged it to the plaintiff on 15th Agrahayan 1315. The plaintiff brought a mortgage suit, No. 870 of 1917, and as Kuran Samal was then dead, he made his widow Balaram Dasi a defendant as also one Guina Samal who was a subsequent transferee in respect of a portion of the mortgaged property. He obtained a preliminary decree on 9th September 1917 and thereafter the final decree. He put the decree into execution and himself purchased the property and took delivery of possession through Court on 31st May 1927. He was dispossessed on 28th November 1927 by defendant 1 who alleged that he had purchased the property from two persons who were the reversionary heirs of Kuran Samal. The plaintiff repudiated this allegation and brought the suit to recover possession as aforesaid and, in the alternative, he made the prayer that if defendant 1 be held to have acquired any title, then he should be made to redeem the mortgage on the footing of the mortgage decree.
2. The suit was contested by defendant 1 and his bhag tenant, defendant 2. They raised various defences challenging the mortgage decree itself and one of their defences was that Balaram Dasi, defendant 3, had entered into a second marriage with one Kailas Jana after the death of her husband Karan Samal, that therefore she was not the heiress of Karan Samal at the time of the mortgage suit, and that consequently the mortgage decree was a nullity. The learned Munsif held that the plaintiff's mortgage was a genuine transaction; but he found that although at the time of the preliminary decree Balaram Dasi might have been correctly represented as the widow and heiress of the deceased mortgagor Karan Samal, she got married to another person before the passing of the final decree and therefore before that decree she had lost her character as heir to the deceased mortgagor and must be considered to be dead in the eye of the law. In that view he held that the final decree in the mortgage suit was a nullity. Accordingly he dismissed the plaintiff's suit. The plaintiff appealed and the question arose whether, in the circumstances, the learned Munsif was right in holding that defendant 3, Balaram Dasi, was not the heiress of Kuran Samal at the time of the mortgage suit. The learned Judge agreed with the Munsif both as to his finding of fact and as to his view of the law and so he dismissed the appeal. Hence this second appeal by the plaintiff.
3. The point of law upon which the decision of this appeal turns is the question whether in the aforesaid circumstances the final decree in the mortgage suit is a nullity, it being taken for granted that the preliminary decree was a valid one. It was pointed out that an application for a final decree is really an application to enforce a judgment and not in the nature of an application in an execution proceeding: see the case of Amlook Chand v. Sarat Chunder (1911) 38 Cal 913 which was confirmed by the Judicial Committee in the case of Munna Lal v. Sarat Chunder AIR 1914 PC 150. According to the explanation to Sub-section (2) of Section 2, Civil P.C., a decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of and it is final when such adjudication completely disposes of the suit. And so it was held by a Pull Bench of this Court in the case of Taleb Ali v. Abdul Aziz : AIR1929Cal689 , that a final decree is dependent on and subordinate to the preliminary decree in a mortgage suit. This being the case, where the basis of the final decree, viz. the preliminary decree, is valid and operative, it is difficult to see how the final decree following thereon can be held to be void and not merely voidable for some such defect as is complained of now. The case of Lachmi Narain v. Balmukund AIR 1924 PC 198 was a suit for partition in which there was a preliminary decree. Thereafter the plaintiff failed to appear before the trial Court and the suit was dismissed for want of further prosecution.
4. It was held by the Judicial Committee that the trial Court had no jurisdiction to make the order, since after a decree had been made in a suit, the suit could not be dismissed unless the decree was reversed. This decision of the Judicial Committee has been relied on in a number of eases where it has been held that once a preliminary decree has been correctly made, it does not abate by reason of the death of a party: see for instance, the case of Bhatu Ram Modi v. Fogal Ram AIR 1926 Pat 141 and the decision of a Full Bench of the Madras High Court in the case of Perumal Pillay v. Perumal Chetty AIR 1928 Mad 914. This case was followed by a Division Bench of this Court in the case of Nazir Ahammad v. Tamijuddi Ahammed : AIR1929Cal430 and by the Patna High Court in the case of Mt. Bhatia v. Abdus Shakur reported in A.I.R. 1931 Pat. 57. No doubt all these are cases in which the final decree had not actually been made, and the question arose at the time of the application for the final decree following on the preliminary decree. But I do not see that makes any difference with regard to the principle which I am considering now. This case is almost exactly similar to the one which was decided by my learned brother Patterson J., in S.A. No. 2873 of 1929 on 5th February 1932. There the plaintiff based his title upon an auction purchase in execution of his mortgage decree. In the mortgage suit, after the preliminary decree, the defendant died and his two infant heirs were substituted without any guardian being appointed in their behalf and thereafter a final decree was obtained. It was pointed out by the learned advocate for the respondent in the appeal before me that in any case that decree was voidabe at the instance of the minors on attaining majority, but Patterson, J., did not proceed on that assumption.
5. On the contrary, he assumed that a decree originally made against the minors not being properly represented would amount to a nullity; but he held in the circumstances before him that where the preliminary decree had been properly made, the final decree being in its nature dependent and subordinate did not amount to a nullity, simply because the defendants were not properly represented in the latter decree. The test is whether the Court had jurisdiction to pass the final decree. Obviously it had, and if that is so, it cannot be said that the decree would amount to a nullity, because the defendant was not properly represented: see the case of Malkarjan v. Narhari (1901) 25 Bom 337.
6. For the respondent reliance has been placed on certain oases which occurred before the decision in Lachmi Narain Marwdri's case AIR 1924 PC 198 referred to above; for instance the case of Bhutnath Jana v. Tara Chand Jana AIR 192 Cal 551, which was expressly dissented from in Nazir Ahammad's case : AIR1929Cal430 . The learned advocate for the respondent has also referred to the case of Digambar Suthar v. Suajan AIR 1929 Cal 238. But that decision does not give any help, because there the equity of redemption was not represented in the suit at all and there was no question as between the preliminary decree and the final decree. In my judgment, in the circumstances of the present case, the final decree which the plaintiff obtained in the mortgage suit was not void, but it was only voidable at the instance of the heirs of the deceased mortgagor. These heirs would be bound by the doctrine of lis pendens and it is found for a fast that the plaintiff himself did not know that the widow had entered into a second marriage. The point therefore must be decided in favour of the plaintiff.
7. The plaintiff himself asked that if defendant 1 be found to have acquired any title, ho should be made to redeem the mortgage on the footing of the mortgage decree. There is no question that defendant 1 did purchase from the reversionary heirs of the deceased mortgagor. The decree was for a sum of Rs. 100. The preliminary decree was obtained on 23rd August 1917; the interest was allowed to run at 6 per cant per annum. Having regard to the lapse of time since then, I consider in the circumstances of this litigation that defendant 1 should be given the option to redeem the mortgage debt on payment of Rs. 180 in full satisfaction of that debt within three months from this date. If such payment is made, the mortgage debt would be considered to be satisfied and the plaintiff's claim for khas possession would be dismissed. If such payment is not made within the time as aforesaid the plaintiff's suit will be decreed. The appeal is, accordingly, allowed with costs in this Court.