Ross, J.This is an appeal against a decree for mesne profits; and the only point that is taken in this appeal is that the suit had abated. It appears that a preliminary decree was passed in 1923 and the appeal was decided in 1924 and the application for ascertainment of mesne profits was made on 25th September 1926. That application was made against the heirs of the sole defendant Mt. Etwaria who had died in the meantime. On 9th April 1927 a petition of objection was filed by these heirs in one of the paragraphs of which they asserted that that could not at that stage be made against the representatives of Mt. Etwaria and that the application was barred by limitation. On 12th November 1927 the plaintiffs applied as a matter of precaution to have the abatement set aside if there had been any and they stated the circumstances in which they were entitled to such an order. On 14th November 1927, a petition of objection on behalf of the defendants appears to have been filed; but there is nothing to show that it was moved and there the matter dropped and the proceedings went on to the appointment of a commissioner; and it was only when his report came up for consideration that this point of abatement was pressed.

2. Now the Subordinate Judge says that there is no satisfactory evidence that the suit had abated. The alleged date of death of Mt. Etwaria was 24th June 1925 which would have made the application out of time by one day. This no doubt the Subordinate Judge regarded as a circumstance requiring strict proof and he thought that no satisfactory proof was given; and this view was confirmed by the vague nature of the objections taken by the defendants. In their original petition of 9th April they did not mention any date of death and did not in fact expressly plead that the suit had abated, and their subsequent objection to the plaintiffs prayer to set aside the abatement if any was apparently not pressed. Consequently the Subordinate Judge was entitled to take the view he took; and on the merits there is no substance in the objection. But even if there was, he was, of opinion that the case had gone on and the defendants had taken part in it throughout; and that although no express order setting aside the abatement was made the case was treated as if such an order had been passed. On the merits there seams to be nothing in this appeal.

3. But I am further of opinion that there is no question of abatement. The preliminary decree had been passed and from the principle of the decision of the Judicial Committee in Lachmi Narain Marwari v. Balmukund Marwari AIR 1924 P.C. 198, which lays down that after a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed in appeal, it follows that there was no abatement in the case. That was a case in which a preliminary decree for partition was made and it was held that the suit could not be dismissed for a subsequent default of the plaintiffs. It is contended on behalf of the defendant-appellants that there is a decision to the opposite effect by a Full Bench of this Court in Jungli Lall v. Laddu Ram Marwari [1919] 4 P. L.J. 240. That case was not strictly on this question. There the decree had been passed against a dead man and it is possible that in such a case different considerations might arise; but it was pointed out by a Full Bench of the Madras High Court in Perumal Pillay v. Perumal Chetty A.I.R 1928 Mad 914 [LQ/MadHC/1928/54] which dealt with precisely the same question as is now under consideration, that the authority of a decision of that Court that there was abatement had been very much shaken by the Privy Council decision in Lachmi Narain Marwaris case AIR 1924 P.C. 198 and consequently it is not clear after that decision of the Privy Council whether the decision of this Court in Jungli Lall v. Laddu Ram [1919] 4 P. L.J. 240 is authoritative.

4. The Full Bench of the Madras High Court held that Order 22, Rules 3 and 4 do not apply to cases of death of parties after the passing of a preliminary decree. The words used in the rule are right to sue and as was pointed out in that case the right of action is determined by the decree and therefore the rule is not strictly applicable. It was argued on the strength of the decision of the Judicial Committee in AIR 1925 117 (Privy Council) that under the present Code there should be abatement. The question in that case arose under the old Code of 1882; and it was held by this Court that as proceedings for the ascertainment of mesne profits under that Code were proceedings in execution therefore there was no abatement and the Judicial Committee took the same view. It is argued that that decision implies that such proceedings under the new Code are liable to abate. In my opinion no such conclusion follows. There was no question in that case as to the effect of death after a preliminary decree under the present

5. I would dismiss this appeal with costs.

Chatterjee, J.

6. I-agree.