Rowland, J.The appellant Babui Shanti Devi is the daughter of Babui Bamsumeri Kuar who was impleaded as defendant 4 in a mortgage suit. A preliminary decree was obtained in the suit in the life time of that defendant who died on 15th October 1937. Thereafter the plaintiff applied for preparation of final decree and applied to substitute one Bhola Prasad as representative of the deceased Ramsumeri. This application appears to have been made on 22nd December 1939. Later on, the present appellant appeared on 30th August 1940 and objected that the property in suit having been a stridhan of Babui Bamsumeri had devolved on the appellant and she and not the son Bhola Prasad was the person to be substituted in place of Bamsumeri Kaar as her legal representative. The plaintiff did not object to these allegations and the appellant was brought on the record as defendant 5 on 9th September 1940. Thereafter on 23rd September 1940, she put in her objection urging that no final decree should be prepared because the suit had abated and no application had been made for setting aside the abatement within the time prescribed by law. Another fact relied on as a ground for holding the suit to have abated was that plaintiff 1 had died and that not all of his representatives have been substituted in his place. The widow has not been joined as plaintiff but the sons have.

2. As regards the absence of the widow, this appears to be a purely technical objection without substance, the widow herself having filed a petition stating that she is not in possession of the properties of the deceased plaintiff nor does she desire any share in the family properties, and that she gets maintenance only from the sons of the original plaintiff 1.

3. As regards the consequence of the death of Bamsumeri, it was represented in the Court below that it was incumbent on the plaintiffs to substitute the appellant within ninety days failing which the suit would abate. This contention was negatived by the Subordinate Judge on the authority of the decision of this Court in Mt. Bhatia and Another Vs. Abdus Shakur and Others, . That decision was passed on the principle of the Privy Council decision in Lachmi Narain v. Balmakund AIR 1924 P.C. 198 and followed and approved the decision of a Full Bench of the Madras High Court in Perumal Pillay v. Perumal ChettyA.I.R. 1928 Mad. 914 . The Privy Counoil decision referred to has laid down the principle: "After a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed in appeal." The Madras and Patna decisions following this have held that Rules 3 and 4 of Order 22, Civil P.C., do not apply in case of the death of a party after a preliminary and before the final decree. The result is that the subsequent arrangement for continuation of the suit must be considered to be governed by Order 22, Rule 10.

4. It has been suggested by Mr. Mullick for the appellant that we should follow the authority of the Allahabad High Court where it has been held in Mahabir Singh Vs. Narain Tewari and Others that if a defendant dies after the passing of a preliminary decree for sale on a mortgage suit and his heirs are not duly brought on the record and final decree comes to be passed, the suit abates as against him. That was not a case in which substitution was applied for beyond the period prescribed in an ordinary case of abatement, but was one in which no substitution had been made before the passing of the final decree which thus came to be passed against a dead person. Such a decree no doubt, will never be effective. That much is established by the Privy Council decision in Radha Prasad Singh v. Lal Singh Sahib Rai 1991 13 All. 53 . But it does not seem to me that the reasoning in the Allahabad decision would justify us in questioning the soundness of the view in the Madras and Patna decisions a view which has also been taken in Nazir Ahmmad and Others Vs. Tamijaddi Ahamed and Others, , AIR 1927 156 (Oudh) as well as under the old Code in Gopal Ganesh v. Ramchandra Sadashiv 26 Bom. 597 and more recently in Dawarali Jafardi v. Bai Jadi AIR 1940 Bom. 689. I understand that the same view is taken in Rangoon, Lahore and Nagpur. The rule seems to be that, on the one hand, no final decree can be passed without the representative of the deceased party being brought on the record; but on the other hand, that Rule 10 and not Rules 3 and 4 of Order 22 are to be regarded as governing the procedure for making the necessary substitution. By an amendment of Rule 12 of Order 22, the law in Allahabad has been brought into line with the law as interpreted in the other High Courts: so that there is now, it, would seem, a general uniformity of practice, not to be lightly disturbed. The contentions of the appellant are therefore in my opinion without substance.

5. A preliminary objection was also taken to the maintainability of the appeal, for, it is directed against the order of the Subordinate Judge directing that account be prepared and final decree made out. It is said that the appellant should have awaited the completion of the final decree and preferred a regular appeal against that. Mr. Mullick found it difficult to resist this argument and suggested, in the alternative, that we should treat this as an application in revision in order to give him relief and to prevent the supposed waste of time, labour and cost in the preparation of a decree which was bound to be infructuous. There is no defect of jurisdiction which would call for our interference and, as I have shown, the decision of the Subordinate Judge appears to be correct. I would, dismiss the appeal with costs.