- (1.) This application for recording the death of the appellant No. 6, deceased Prafullamoyee Mistry, and for bringing on record her heirs and legal representatives has a chequered history. The appellants previous application for bringing on record the alleged donee of Prafullamoyee did not succeed for reasons we need not enter into at this stage. The present application has been made by the appellants stating that Prafullamoyee died intestate and that on her death her interest devolved upon the four persons mentioned in paragraph 3 of the application. Amongst them, Probhabati Mistri is already on record as the plaintiff-respondent No. 1. Upon an application made by herself, another heir, Parulbala Santra was added as a respondent in this appeal (vide Order passed on 5th August, 1980). The two remaining heirs of the deceased appellant No. 6 are not yet parties to this appeal. They have been served with the copies of the substitution application and an affidavit of service has been filed in this behalf. The said two persons have not, however, appeared to oppose this application.
(2.) We reject the preliminary objection raised on behalf of the respondents that the appellants were required to make an application under Rule 4 read with Rule 9 of Order XXII of the Code for setting aside the abatement caused by the death of the deceased appellant No. 6 and for bringing her heirs on record. In the first place, at least one of the heirs of the deceased appellant No. 6 was already on record as respondent No. 1. Therefore, the aforesaid provisions would not be attracted to the facts of this case. The weighter reason would be that this appeal has been preferred against the final decree passed in a suit for partition. The decision of Mitter and Chunder, JJ. in Bhusan Chandra Mondal v. Chhabimoni Dasi & Ors., reported in 53 C.W.N. 582, is a clear authority for the proposition that when the defendant dies after a preliminary decree for partition and account is passed, an application for bringing the heirs of the deceased defendant on record comes under Order XXII, Rule 10 of the Civil Procedure Code and not under Rules 3 and 4 of the said order and there is no period of limitation fixed for the purpose. The Division Bench in Bhusan Chandra Mondal's case (supra), pointed out that in case a preliminary decree has been already 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 these rights and liabilities remain unless or until the decree is varied or set aside. The Division Bench applied the principles laid down by the Judicial Committee in Lachmi Narain Marwari v. Balmukund Marwari, reported in LR 51 I.A. 321 and came to the conclusion that in case of a death after passing of a preliminary decree it would be a case of devolution occurring under Rule 10 of Order XXII. The above decision in Bhusan Chandra Mondal's case (supra), is binding upon us and we also respectfully agree with the principles laid down by the said case. Therefore, we are bound to hold that the Rules 3 and 4 of Order XXII of the Code were inapplicable and the present application under Order XXII, Rule 10 of the Code is not barred by limitation.
(3.) The decision in Rameshwar Prasad & Ors. v. Shambehari Lal Jagannath & Anr., reported in A.I.R. 1963 SC 1901 upon which Mr. Kundu placed his reliance is not relevant. The said decision is an authority for the proposition that in case of a death of one the several appellants and the appeal abating under Order XXII. Rule 3 the Court has no power to proceed under Order XLI, Rule 4, of the Code. In other words, Rule 4, Order XLI of the Code does not overrule Rule 9 Order XXII of the Code. Their Lordships had no occasion to consider the effect of death of a party which takes place during the pendency of an appeal against the final decree in suit for partition.;