1. This is an application by the transferee from the plaintiff under Order 22, Rule 10, Civil P.C., to be sub-atituted in the suit as plaintiff. The suit was a suit on a mortgage in which the plaintiff obtained a preliminary decree on 3rd July 1923 and a final decree on 12th June 1935. The assignment under which the present applicant claims title was dated 17th September 1936. Order 22, Rule 10, is as follows:
In other cases of an assignment which means oases other than those dealt with in the preceding rules] creation or 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 come or devolved.
2. The only question which is argued before me is whether the applicant has the right to obtain the relief which he seeks under Order 22, Rule 10, in face of the contention by the opposite party that the suit is no longer pending. Mr. Das for the applicant relies more particularly on the case reported in Bhugwan Das v. Nilkanta Ganguli (1905) 9 CWN 171, where the facts appear to have been very similar to those now before this Court. Woodroffe J. in his judgment says:
It is next said that there has been no devolution of interest 'pending the suit,' but that such devolution occurred after the suit had coma to an and, namely after the passing of the order absolute for sale. I cannot accept the contention that absolutely and in every case after decree no suit is pending. It is urged in the present case that there was final decree when the order absolute wag made. In my opinion however the suit can-not be said to have come to an end until the actual sale under that order takes place, up to which time, as has been recently held by this Court, a mortgagor has the right to pay and redeem.
3. That reasoning does not appear to have been followed in other oases that have come before this Court and before the Court in other provinces. In the case reported in Hemendra Lal Singh Deo v. Fakir Chandra Datta (1923) 10 AIR Cal 626 a mortgage suit was decreed in the Court at Bankura and the defendant was allowed six months for payment of the decretal amount. There was an appeal and the suit was eventually compromised on certain terms. The compromise provided that in default of payment within two years the amount due is to be realized by sale of the mortgage properties and a decree was passed in terms of the compromise. More than three years later, the plaintiff applied for substitution and that application was opposed on the ground of limitation. The Sub-ordinate Judge held that the suit was no longer pending but made an order that the plaintiffs were at liberty to execute the decree by making a proper substitution in the application for execution. The matter came before the High Court when C.C. Ghose and Panton JJ. upheld the decision of the lower Court. In giving judgment, the learned Judges said the question really depends upon the view which may be taken of the nature of the compromise decree. If it was merely a preliminary decree in a mortgage suit, then obviously it follows that before execution can be levied, an order under Order 34, Rule 5 making the preliminary decree final had to be obtained. If however the ingredients of a preliminary decree are absent then it does not lie in the mouth of the appellant to argue that, without more, a compromise decree is incapable of execution. They held that the intention of the compromise decree was to entitle the plaintiff to realize their money forthwith by sale and that therefore it was unnecessary to apply for substitution of the heirs of the plaintiff since the suit had come to an end. In Cunningham Sircar v. Fred Stephens : AIR1931Cal51 there was similarly a consent decree which the plaintiff applied to amend and substitute a new trustee in place of the trustees who had resigned during the pendency of the suit. Lort-Williams J. in delivering the judgment said:
I am not satisfied that substitution after final decree in a suit can be made under Order 22, Rule 10, even in execution proceedings, but I am quite sure that there is no such power to make substitution under that Rule at a time after a final decree had been made and before any question of execution proceeding has arisen.
4. Again, in the case reported in Perumal Pillai v. Perumal Chetty (1928) 15 AIR Mad 914, there was a preliminary decree in a mortgage suit and thereafter the plaintiff died and an application was made praying that the abatement might be set aside. It was held that the suit was still pending and that the application was in order and not barred by limitation. In the order of reference it was pointed out that on the making of a decree, the parties have acquired rights or incurred liabilities which are fixed, unless or until the decree is really set aside, and the same principle was formulated in the opinion of the Full Bench which was delivered by Sir Murray Coutts-Trotter C. J. At page 710 of the report, after referring to several cases, the learned Chief Justice said that they seem 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 in the preliminary decree. Mr. Das seeks to distinguish these cases from the decision in Bhugwan Das v. Nilkanta Ganguli (1905) 9 CWN 171, on the ground that they refer to the procedure in mortgage suits in the mofussil which differs from the procedure on the Original Side. The principle however is unaffected by the procedure that is observed either on the Original Side or in the mofussil, and it appears to me quite clear that on the final decree being passed the suit cannot be said to be any longer pending. The applicant could apply for execution of the decree as a transferee under Order 21, Rule 16 and that is the order which it seems to me proper to make on this application. The opposite party does not object to this course. It is ordered accordingly. Each party will bear their own costs of this application. Certified for counsel.