JUDGMENT
B.B. Ghose, J.
1. This appeal arises out of a final decree made by the Subordinate Judge in a suit on a mortgage. The appeal is by the defendant. The mortgage suit was settled between the parties by a compromise and what is said to be the preliminary decree was passed on 26th May 1916. In that decree it was provided amongst other things that the appellant should pay the decretal amount to the extent of Es. 12,500 within 15 days of the decree and the remainder Rs. 11,500 in certain instalments spreading over several years. The last instalment was said to be payable on 30th Baisakh 1333 B.S. There was a further stipulation that in default of payment of two instalments the whole amount of the balance then remaining due would at once be recoverable. It was stipulated that the mortgage lien would remain intact and the plaintiffs would be entitled to execute the decree by obtaining a final decree with reference to their dues still remaining unpaid. One of the persons named Kali Prosanna Seal who was entitled to the decretal money died on 15th February 1922. The instalments were paid up upto 1329. Default was made of the instalment payable in 1330. Thereupon the plaintiffs made an application for the final decree according to the terms of the Compromise. The objection on behalf of the defendant was that the suit had abated and, therefore, the plaintiffs were not entitled to a final decree as prayed for. An application was made for substitution of the legal representative of the deceased person Kali Prosanna Seal by a petition which was filed on 7th June 1923. The petition was alleged to be a joint petition by Tarak Nath Seal, the legal representative of the deceased Kali Prosanna and of the defendant the appellant before us. In that petition it was stated that the amount of Rs. 1700 payable for the Baisakh kist of 1329 was received by Tarak Nath Seal and the prayer was that Tarak Nath Seal might be substituted in the place of his father and the payment of Rs. 1700 recorded. The plaintiffs admitted that payment and, therefore, their contention before the Sub-ordinate Judge was that although there was no order substituting the representative of the deceased plaintiff on the record made by the Court, as a matter of fact, by consent of parties he was substituted. There was also an objection raised by the defendant that the application was barred by limitation. The Sub ordinate Judge rejected the plea of limitation. He, however, held that there was abatement of the suit so far as the share of Kali Prosanna Seal was concerned. In that view he made a final decree for half of the amount due under the compromise to which sum the surviving plaintiffs were entitled according to his view, and he also held that a half of the properties would be liable under the final decree.
2. Defendant 1 has appealed from that judgment and decree of the Subordinate Judge and the plaintiffs have preferred a cross-objection against that part of the decree which is against them. On behalf of the defendant it is urged that the mortgage decree is one and indivisible and if the suit fails so far as one of the mortgagees is concerned the whole suit abates. The decree made by the Subordinate Judge therefore cannot be maintained. It is contended on behalf of the respondents that the whole question that was discussed by the Subordinate Judge was irrelevant. The fact was that the suit was brought by a firm. The compromise decree was with the firm and, therefore, under Order 30, Rule 4, Civil P.C, if one of the persons who was a member of the Firm died during the pendency of the suit it would not be necessary to join the legal representative of the deceased as a party to the suit; and therefore assuming that the suit was a pending suit after the compromise decree there is no question of abatement on account of the death of Kali Prosanna Seal. It is further contended that it is not a case in which the decree was made under Order 34, Rule 4, Civil P.C. It was a compromise decree in which according to the agreement between the parties the decretal amount was made payable by instalments spreading over a large number of years. Although there was a stipulation that on failure of payment of two instalments the decree-holders would be entitled to apply for a final decree being made, that application could not be an application under Order 34, Rule 5, Civil P.C. The compromise between the parties took the case quite out of the provisions of Order 34, Civil P.C. And therefore the plea that the suit abated on the death of one of the partners of the firm cannot be maintained. This argument of the respondents covers both the appeal as well the cross-objection preferred by them. It was further urged that the Subordinate Judge had on insufficient grounds rejected the contention of the plaintiff’s that the application for substitution of the legal representative of Kali Prosanna Seal was jointly made by Tarak Nath Seal, the representative as well as the defendant.
3. The last point is quite a short one and may be disposed of in a few words. It appears that the vakalatnama which bears the signature of defendant 1 was tendered to a pleader named Panchanan Mukerji by a gomasta of Utankalal Mukerji, the defendant. On the margin of the vakalatnama it is written that
this vakalatnama is presented through me on behalf of the defendants. Finis 6th June 1923.
4. The signature is of Madhob Chandra Sinha, gomasta. The endorsement on the vakalatnama is:
Received from Madhob Chandra Sinha, agent for the executant and I am satisfied that he has authority to deliver this vakalatnama to me and accepted. (Sd.) Panchanan Mukerji, pleader.
5. The petition was filed on the strength of this vakalatnama. The Subordinate Judge observes with reference to this matter as follows:
The pleader’s endorsement on the vakalatnama shows that he received it from a servant of the defendant but he does not mention any written authority of the servant in this behalf. So this application cannot be taken as a consent of the defendant to the substitution of Tarak or to the setting aside of the abatement. Moreover, this application was dismissed by the Court as the applicants did not comply with the Court’s order for payment of process fees for service of notice on the parties.
6. With regard to this matter it seems to me that the Subordinate Judge held that the application could not be taken as made with the consent of the defendant on very insufficient grounds. Defendant 1 of course says that he did not authorize his gomasta to present the vakalatnama. The mere fact that the pleader does not mention that there was written authority does not go against the authority given to him by the vakalatnama It was the duty of the pleader to satisfy himself as to the authority of the person who presented the vakalatnama and he stated that he was satisfied that the gomasta had authority to deliver the vakalatnama to him. The pleader has not been examined by the defendant nor has the gomasta been examined. Under such circumstances it cannot be supposed that this vakalatnama and the petition were filed without the authority of defendant 1. Moreover in the petition, receipt of Rs. 1700 from defendant 1 is admitted which is adopted by the other plaintiff’s as having been received by them. It can hardly be supposed that the admission was made by the legal representative of Kali Prosanna Seal of having received Rs. 1,700 without the knowledge or consent of the defendant or his agent. Then with regard to the fact about the dismissal of the petition there was no other person on whom it was necessary to serve notice for the substitution. Defendant 1 was the only defendant who was liable under the decree and the other persons concerned were the plaintiffs. So it is difficult to understand what procedure was followed by the Subordinate Judge in dismissing such an application as that.
7. The most important point, however, in the case is the first point raised on behalf of the respondents. The plaint as I have already stated was by the proprietors of the firm under the name and style of late Nitai Charan Seal and Kali Prosanna Seal situated at 41, Moirahatta Street, Calcutta. After that the names of the proprietors are given. Under Order 30, B. 4, Civil P.C. to which reference has already been made, where two or more persons sue in the name of a firm, if any of such persons dies, whether before the institution or during the pendency of any suit, it shall not be necessary to join the legal representatives of the deceased as a party to the suit. Now assuming that the suit was pending after the compromise decree as if it was a continuing suit under Order 34, Civil P. C Under this rule it is not necessary to join the legal representative of the deceased Kali Prosanna Seal as a party in order to have a final decreemade. It is argued on behalf of the appellant by reference to Rule 2, Sub-rule (3) of Order 30, that where the names of the partners are declared the provisions of Order 22 cannot be said to be inapplicable. Reference is made to the concluding words of the sub-rule which run thus:
The suit shall proceed in the same manner and the same consequence in all respects shall, ollow as if they had been named as plaintiffs in the plaint.
8. But there is a proviso which follows the sub-rule which says:
Provided that all the proceedings shall nevertheless continue in the name of the firm.
This sub-rule in no way cotradicts the provisions of Rule 4 where the words are:
Where two or more persons may sue in the name of a firm.
9. In this case two or more persons have sued in the name of the firm. There is nothing therefore which prevents the operation of Rule 4, and in that view it was not at all necessary that there should be any substitution of the legal representative of the deceased Kali Prosanna Seal in order to entitle the plaintiffs to obtain a final decree. Reference has been made by the respondents to the case of Bal Kissan Das Daga v. Knahya Lal [1913] 17 C.L.J. 648, which is quite in accordance with the provisions of this rule.
10. The next point urged is that the compromise decree is not a preliminary decree under Order 34, Rule 4, Civil P C. and therefore after the compromise decree the suit could not be considered as a pending suit. It has been settled in this Court by a long series of cases that a compromise decree in a mortgage suit in which the decretal amount is payable by instalments according to the agreement between the parties is not a preliminary decree as contemplated by Rule 4, Order 34. The earliest case that may be referred to on that point is the case of Abir Pramanik v. Jahar Mohammed [1907] 34 Cal. 886, and the latest case is that of Hemendra Lal v. Fakir Chandra A.I.R. 1923 Cal. 626. This principle has also been laid down in the Full Bench case of the Allahabad High Court in Ashari Hasan v. Jahangiri Mal . In that view it may very well be said that the compromise decree put an end to the suit. Although under the terms of the compromise the decree-holder was bound to make an application for a final decree, that application would not be an application falling strictly under Order 34, Rule 5, Civil P.C. As there was no suit pending in the Court there was no reason for applying for substitution of the heirs of the deceased person Kali Prosanna Seal. But it would be sufficient if the application was made by the persons entitled to do so under the decree at the time when the application was made, if the application was made within the period of limitation. The appellant relied upon the case of Kashi Chandra v. Priya Nath Bakshi in support of his contention that it was incumbent upon the plaintiffs to have the final decree made in terms of the compromise. But in that case it has been clearly laid down that the obligation to have a final decree was based upon the terms of the compromise and it was not an application under Order 34, Rule 5. This contention of the respondents also seems to me to be quite substantial and in my judgment it is right. In this view it is not necessary for me to consider in this case whether a suit in which a preliminary decree has been passed abates if one of the parties dies and no substitution is made within the period of limitation under Order 22, Civil P.C. The only observation that I think it necessary to make is that this point requires consideration in a proper case, as it would be very inconvenient if after the preliminary decree all persons who are parties to the suit are required to be on the alert to see whether any of the decree-holders or judgment-debtors under the preliminary decree dies before the application for the final decree is made.
11. In my opinion this appeal should be dismissed with costs and the cross-objection allowed with costs. The hearing fee for the- appeal as well as the cross-objection is fixed at 500 Rupees altogether.
Bose, J.
12. I agree.
