1. The defendant is the appellant before us and the factswhich have given rise to this appeal, shortly stated, are as follows. On the17th April 1913 the plaintiffs obtained a preliminary decree in a mortgagedsuit for Rs. 1,08,964-9-5 against the defendant in the Court of the SubordinateJudge of Bankura. An appeal was carried against the said decree to this Court,being Appeal No. 39 of 1914, by the defendant, Raja Mahendra kal Singh Deo.This appeal came on for hearing before Mr. Justice Fletcher and Mr. JusticeShams-ul-Huda on the 10th January 1918 when a petition was put in on behalf ofboth parties to the effect that it had been agreed between the parties that theplaintiffs would get a decree for Rs. 70,000 inclusive of all costs andinterest up to the said date, and that the said amount would be paid by thedefendant, Raja Mahendra Ial Singh Deo, within two years there from with interestat the rate of Rs. 4-8-0 per cent, per annum till realization, and that indefault of payment within the said period of two years, the said amount of Rs.70,000; with interest at the said rate till realization, would be realized bythe sale of the properties mentioned in the plaint. Thereupon, it was orderedthat the said petition should be filed as of record and that the defendant andthe plaintiffs should give effect to and be bound by the terms, thereof. Theplaintiffs were not paid any portion of the moneys due to them under the decreeof the Court dated the 10th January 1913, within two years from that date, butit appears that one of the plaintiffs, Prayag Chandra Dutt, died on the 26thJaistha, 1326 B.S., corresponding with the 9th June 1919, leaving him survivingIns sons, Radha Raman Dutt, Sham Sundar Dutt and Jalad Barau Dutt, as his heirsand legal representatives and that the defendant Raja Mahendra Lal Singh Deodied 01 the 3rd December 1920, leaving him surviving his son Hnnendra Lal SinghDei as his heir and legal representative on the 3rd June 1921 the plaintiffsapplied for an order for the substitution on the record of the heirs of thedeceased plaintiff and of the heir of the deceased defendant The heir of thedeceased defendant win was sought to be substituted on the re cord opposed theapplication on the ground that it was barred by limitation, but 01 the 20th ofJuly 1921, the learned Sub ordinate Judge by his order of that date held that,having regard to the terms the decree of this Court which final: disposed ofthe suit instituted by the plaintiffs, there was no pending suit ii which theapplication for substitution o the heir of the deceased plaintiff and o theheirs of the deceased defendant was entertain able. The learned SubordinateJudge further held that the plaintiffs might execute the decree by makingpropel substitution in an application for execution of the decree. Thereupon,the plaintiffS applied for execution of the decree in question and it wasordered on that application that after the necessary substitutions had beenmade notices should issue under Order XXI, Rule 22 of the Code of CivilProcedure.

2. Against the last mentioned order the Appeal No. 222 hasbeen preferred, while against the order previously referred to, Appeal No. 223has been preferred. There is also a connected rule, being Rule No. 539 of 1921,under which further proceedings have been stayed. On behalf of the appellant ithas been contended before 11s that the decree made on the 10th January 1918, byMr. Justice Fletcher and Mr. Justice Shams-ul-Huda was in substance and in forma preliminary decree in a mortgage suit and that a final decree had still to bemade in the suit before the plaintiffs could realise the moneys due to them bythe sale of the properties mentioned in the plaint and that, inasmuch as thedeceased plaintiffs heirs had not been brought on record within a period ofsix months from the date of the death (that being the period under theLimitation Act before the last amendment), and the deceased defendants heirhad not been brought on record within three months 3 from the date of the death(that being the period under the present Limitation 1 Act), the plaintiffsremedies, if any, were barred. It is argued that, assuming that f a finaldecree had to be made if the heir of the sole judgment-debtor was not ) broughton the record within the time limited by law, Order XXII, Rule 4 of the Code 1of Civil Procedure applies and the mortgage suit abates, and in support thereofreference is made to the case of Bhutnath; Jana v. Tara Chand Jana 59 Ind. Cas.177 : 33 C.L.J. 115 : 25 C.W.N. 595. Our attention has also been invite to thecase of Dakoju Subbarayudu v. Musti Rama Dasu 68 Ind. Cas. 942 [LQ/PatHC/1922/152] : 45 M. 872 : 15L.W. 309 : 42 M.L.J. 301 : 30 M.L.T. 202 : (1922) M.W.N. 373 : AIR (1923) (M.)237 as to the effect of the deceased plaintiffs heirs not having been broughtf on the record within the time limited by law. It is further argued that ifthe application of the 3rd June 1921, referred s to above, is treated as anapplication for: execution of the decree, then time ran from the date of thedecide made by this Court and not from the expiration of two years from thatdate, and in support thereof the judgment of their Lordships of the Judicial Committeein case of Sachindra Nath Roy v. Maharaj Bahadur Singh 74 Ind. Cas. 660 : 49 C.203 : 48 I.A. 335 : 4 U.P.L.R. (P.C.) 57 : 30 M.L.T. 96 : 24 Bom. L.R. 659 :(1922) M.W.N. 338 : 26 C.W.N. 858 : AIR 1920 (P.C.) 187 (P.C.) was referred to,the contention being that the application was barred under the three yearsrule. A further point was taken on behalf of the appellant that, having regardto the language of Section 45 of the Indian Contract Act, one plaintiff havingdied and his heirs not having been substituted, the entire suit had abated. Onbehalf of the respondent it has been argue that the decree, made by this Courton the 10th January 1918, was in no sense a preliminary decree in a mortgagesuit as contemplated by Order XXXIV, Rule 4, of the Code of Civil Procedure, itwas in no sense a conditional decree, and that the rule that the decree-holderin a mortgage suit ought not to be ordinarily allowed without previous noticeto the judgment-debtor to take out execution on the allegation that the conditionor contingency has been fulfilled, was excluded in this case by the consent ofthe parties." It was further contended that having regard to the these ofthe compromise decree and having regard to the provisions of Order XXII, Rule12, Civil Procedure Core; it was unnecessary in execution proceedings to applyfor substitution of the heirs of the deceased plaintiff and of the deceaseddefendant and that it was open to the plaintiffs to proceed to levy executionimmediately on the expiration of two years from the date of the compromisedecree.

3. The question really depends upon the view which may betaken of the nature of the decree made by this Court on the 10th January 1918.If it was merely a preliminary decree in a mortgage suit then, obviously, itfollows that before execution could be levied, an order under Order XXXIV, Rule5, Civil Procedure Code, nuking the preliminary decree final had to be obtainedand in that view of the matter the plaintiff would no doubt be in considerabledifficulty, having, regard to the events which had happened. If, however, theingredients of a preliminary. decree in a mortgage suit are absent from thecompromise decree in this case, if for the consideration 01 a reduction ofinterest from 12 per cent, to 4 per cent, and of the principal and interestfrom Rs. 1,40,758 to Rs. 70,000 ana for the further consideration of an unusualextension of the period of grace from six months to two years for there-payment of the principal and interest due on the mortgage and, the defendantchose to waive tile advantage of the rule of law requiring preliminary decreesto be made final before execution could be levied, then does it lie in themouth of the present appellant to argue that, without more, the compromisedecree is incapable of execution Were of opinion that the intention of theparties, as far as the same can be gathered friction ,the compromise decree,was that inundatal on the expiration of two ceases from the date of the decree,the plaintiffs would be competent to realize the Moneys due to them cy the saleof the properties mentioned in the plaint. If that is so, it follows that,under the provisions" of Order XXII, Rule 12, Civil Procedure Code, it wasunnecessary to apply in the suit, which had come to an end, for substitution ofthe heirs of the plaintiff and of the deceased defendant and we think that theorders passed by the Subordinate Judge on the 20th July 1921, allowing theexecution to proceed cannot be seriously objected to. In this view of thematter, it becomes unnecessary for us to discuss at any length, the questionsraised in the elaborate argument on behalf of the appellant. We will contentourselves by remarking that in the special circumstance of this case thequestion of limitation in the form in which it was raised in the case ofSachindra Nath Roy v. Maharaj Bahadur Singh 74 Ind. Cas. 660 : 49 C. 203 : 48I.A. 335 : 4 U.P.L.R. (P.C.) 57 : 30 M.L.T. 96 : 24 Bom. L.R. 659 : (1922)M.W.N. 338 : 26 C.W.N. 858 : AIR (19220 (P.C.) 187 (P.C.) has no application.

4. The result, therefore, is that these appeals fail andmust be dismissed with costs which we assess at 5 gold mohurs in each appeal.

5. The Rule also fails and is accordingly discharged.

6. The records will be returned to the lower Court without delay.

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Hemendra Lal Singh Deovs. Fakir Chandra Datta(02.03.1923 - CALHC)