( 1 ) DELAY condoned.

( 2 ) THE father of the petitioner was the 2nd defendant in OS No. 232 of 1986 filed in the court of Civil Judge at Udipi. The suit had been filed under Order 34 Rule 4 for the recovery of the money due under an hypotheca. A preliminary decree was passed in the suit on 28/6/1989 on the basis of a joint memo filed by the parties. Thereafter, Muthu Marakala, the seconddefendant/surety, died. An Application No. 316 of 1991, to pass final decree, when was filed by the plaintiff, it also made an application to bring the petitioner as legal representative of deceased second respondent, which was opposed on the ground that such application was barred by limitation and the preliminary decree, itself, had abated after the expiry of 90 days from the date of death of defendant 2. An objection had also been raised that the petitioner was not liable to pay the amount of the decree unless principal debtor-defendant was proceeded against. That application was allowed by the trial court. On revision, while leaving open the second question, the High court of Karnataka by its impugned order dated 19-4-1994 made in CRP No. 782 of 1994 upheld the order of the trial court.

( 3 ) SHRI Santosh Hegde, learned Senior Counsel for the petitioner, contended that though a preliminary decree had been passed by the trial court, it, by itself, was not executable unless Final decree thereon was passed. In making the final decree, an adjudication on issues which arise, needs to be made. Therefore, the legal representatives of the deceased defendant 2 should have been brought on record within 90 days from the date of his death under Article 120 and if 60 days time expires after the expiry of 90 days, an application for setting aside abatement under Article 121 of Schedule to Limitation Act, 1963 should have been made. Since such applications had not been filed within the periods of limitation, the preliminary decree itself, stood abated. The trial court and the High court were not right in directing to implead the legal representative of the second defendant. We find no force in the contentions.

( 4 ) IT is seen that the decree in question is a consent decree, which had become final. The preliminary decree made under Order 34, Rule 4 Civil Procedure Code clearly mentions in clause (1 that "the defendants jointly, severally and personally do pay to the plaintiff a sum of Rs. 7,31,984. 10 with future interest on Rs. 3,45,461. 55 (loan account Serial Nos. 1, 3, 4, of the c Schedule) at the rate mentioned therein". It is, thereby, clear that the adjudication of and fastening the liability on the respective defendants became conclusive.

( 5 ) CLAUSE (5 of the preliminary decree mentioned:

"and it is hereby further ordered and decreed that, if the money realised by such sale shall not be sufficient for payment in full of the amount payable to the plaintiff as aforesaid, the plaintiff shall be at liberty (where such remedy is open to him under the terms of his mortgage and is not barred by any law for the time being in force) to apply for a personal decree against the defendants for the amount of the balance; and that the parties are at liberty to apply to the court from time to time as they may have occasion, and on such application or otherwise the court may give such directions as it thinks fit. "

FROM this, it is contended that a further adjudication needs to be made and that, therefore, it is necessary to bring the legal representatives within the limitation prescribed under Articles 120 and 121 of Schedule to the 409 Limitation Act, 1963. It is seen that clause (1 determined a personal liability against each individual defendant. But since suit is based on hypotheca, a preliminary decree was passed. Several clauses are introduced for diverse steps to be taken. Rule 4 of Order 34 provides that the court should pass a preliminary decree in terms of clauses (a), (b), (c) and (i) of sub-rule (1 of Rule 2. It further directs that in default of the