An application under Order 1, Rule 10 C. P. C. to add parties as legal representatives is maintainable when the right to sue survives after the preliminary decree is passed and the defendant dies.

P. RAMACHANDRA RAJU, J.

( 1 ) THE petitioner who is the defendant in O. S. No. 18/68 on the file of the District munsif s Court, Pithapuram, filed this revision petition challenging the order made in I. A. No. 508/89 in O. S. No. 18/68 allowing the application to bring on record certain third parties as legal representatives of the seventh defendant. The said application was resisted by the petitioner herein.

( 2 ) O. S. NO. 18/68 was filed for partition and separate possession of the plaintiff s share which was decreed on 27-2-1970 and final decree petition is pending. While so, the seventh defendant died on 13-5-1979. However, this application was filed after long gap of nearly 10 years under Order 1 Rule 10 c. P. C. to bring certain third parties as respondents in the final decree proceedings. The main objection of the petitioner herein, is that after the death of the seventh defendant, L. R. application should be filed under Order 22, Rule 3 C. P. C. and if no such application is filed, me suit itself abates and no application under order 1, Rule 10 C. P. C. is maintainable.

( 3 ) RULE 4 of Order XXII C. P. C. prescribes the procedure to be followed in case of death of one of several defendants or sole defendant, which is as follows:-"where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. "the words, "right to sue" have come for interpretation many a time in several high Courts in India. A Division Bench of the Madras High Court reported in dakoju Subbarayadu vs. Musti Ramadasu, initially took the view that the right to sue obviously includes the right to proceed with the suit until the latter terminates and in the case of a mortgage-suit, where a preliminary decree and a final decree are both necessary, the right to sue must include the right to obtain a final decree after the passing of a preliminary decree. But, this view of the division Bench did not hold the field for long in view of a later decision of the privy Council, reported in Lachmi Narayan vs. Balmakund. In the said decision, the Privy Council held as follows:-" After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside. "following the above Privy Council decision, a Full Bench of the Madras High court reported in Perumal Piliai vs. Perumal Chetty, held that the view expressed in Dakoju Subbarayudu vs. Musti Ramadasu, had been very much shaken by the privy Council decision reported in Lachmi Narayana vs. Balmakund, and therefore, following the Privy Council, the Full Bench held that the preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working out of accounts and other things in the final decree are a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally determined in the preliminary decree. The full Bench overruled the view expressed by the Division Bench in Dakoju subbarayudu vs. Musti Ramadasu, and held that after the preliminary decree is passed, the provisions of Order XXII, Rules 3 and 4 C. P. C. do not apply to cases of death and as such, L. R. Applications need not be filed under these rules.

( 4 ) THE Full Bench also considered the case reported in Chapman vs. Day (1883) 48 L. T. 907, which is cited before the Full Bench for the view that in a case where a preliminary decree had already been passed, the right of action had already been determined before the death of the defendant and as such, the subsequen

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