JUDGMENT Niamatullah and Rachhpal Singh, JJ. - This is a Defendants' appeal against the order of the Court below directing that a final decree be prepared in a suit for sale of mortgaged property. Kesho Ram, his son Bhupal Ram and Bhupal Ram's son Lala Babu obtained a preliminary decree for sale of the mortgaged property against Bahadur Singh and Ors. on 31st January, 1923. Kesho Ram alone preferred an appeal on 30th April, 1923, to this Court. Bhupal Ram and Lala Babu were no parties to that appeal. Kesho Ram died in July, 1926. On the 18th October, 1926, the appeal filed by Kesho Ram was partly allowed. The fact that Kesho Ram had died long before the date of the hearing of the appeal was not brought to the notice of this Court. On the 27th April, 1927, Bhupal flam and Lala Babu applied for a final decree. The mortgagors raised the plea that the application was not within limitation. The learned Judge of the Court below rejected the plea of limitation and ordered that a final decree be prepared. The Appellants have preferred the present appeal against that order. 2. The only question for determination in appeal is whether the application for a final decree was made within limitation. The preliminary decree in the case was passed on the 31st January, 1923, and the mortgagors were allowed time till the 31st July, 1923, for redemption. An application for a final decree was not made till the 28th April, 1927, that is to say, more than three years after the date fixed for redemption. An application for a final decree has to be made within three years from the date fixed by the preliminary decree for payment unless there is an appeal, in which case it can be made within three years from the date of the decree of the appellate Court. In the case before us, of the three mortgagees, only Kesho Ram had appealed against the decree of the Court below, and he died in July 1926. The appeal automatically abated on the date of his death and the decree of this Court which was passed in ignorance of the fact that Kesho Ram had died was a nullity. In the case before us, of the three mortgagees, only Kesho Ram had appealed against the decree of the Court below, and he died in July 1926. The appeal automatically abated on the date of his death and the decree of this Court which was passed in ignorance of the fact that Kesho Ram had died was a nullity. When Bhopal Ram and Lala Babu made an application for a final decree, the Court below gave them an opportunity to apply to this Court to have the abatement set aside They did apply to this Court but were unsuccessful. 3. We have heard the Learned Counsel for the parties and are of opinion that the application made by Bhupal Ram and Lala Babu for the preparation of a final decree is not within limitation. Article 181, Schedule 1, Limitation Act applies and the application for a final decree should have been made within three years from the date fixed for payment in the preliminary decree. The learned Subordinate Judge was wrong in thinking that one can not apply for a final decree when an appeal against it has been preferred. There is nothing in law to prevent a mortgagee from applying for a final decree even though an appeal has been filed against the preliminary decree. The learned Subordinate Judge has expressed the opinion that the appeal which Kesho Ram alone had filed may be presumed to have been preferred by him on behalf of his son and grandson also as they constituted a joint family. We may remark that having regard to the order of this Court dated the 19th December, 1928, it is no longer open to the contesting Respondents to say that the appeal of Kesho Ram was filed on their behalf as well. The point was definitely decided against them by the learned judges hearing their application for setting aside the abatement and it was expressly held that Kesho Ram's appeal was not filed on their behalf. Assuming Kesho Ram appealed for himself and his coparceners, the fact remained that he was the sole Appellant and on his death some one who could be regarded as his legal representative should have been brought on the record as Appellant. The failure to take proceedings for substitution of names within limitation necessarily resulted in the abatement of the appeal. 4. The failure to take proceedings for substitution of names within limitation necessarily resulted in the abatement of the appeal. 4. The Learned Counsel appearing for the Respondents urged that an order passed by an appellate Court holding that the appeal had abated amounted to a confirmation of the decree of the lower Court and therefore time for making an application for a final decree would run from that date. In support of this contention he relied on the case Mohammad Raza v. Karbalai Bibi (1910) 32 All. 136 : 5 Ind. Cas. 473 : 7 A.L.J. 58. We, however, do not think that that case can help the Respondents. In the case before us there was no order of abatement passed by the Court which might he said to have the "effect of confirming a decree of the lower Court". On the other hand, we have a case in which the decree of the lower Court was varied in appeal in ignorance of the fact that the Appellant had died. A decree passed in such circumstances is a nullity and the appeal should be deemed to have ended in abatement without any decision on the merits. Article 182 provides for a lengthened period reckoned from the date of" the final decree or order of the appellate Court". Where an appeal abates, it does so automatically and there is no "final decree or order of the appellate Court". It may also be pointed out that it is doubtful whether the case Mohammad Raza v. Karbalai Bibi (1910) 32 All. 136 : 5 Ind. Cas. 473 : 7 A.L.J. 58, can be considered to be good law in view of the subsequent pronouncement of their Lordships of the Privy Council in the ruling Batuk Nath v. Munni Dei (1914) 36 All. 284 : A.I.R 1914 P.C. 65 : 23 Ind. Cas. 644, in which it was held that where an appeal pending before his Majesty in Council is dismissed for want of prosecution, such dismissal is no: the: final decree of the appellate Court, and the period of limitation, therefore, would not commence from the date of the dismissal of the appeal. The same view was taken by their Lordships in another case, Abdul Majid v. Jawahir Lal (1914) 36 All. 350 : AIR 1914 P.C. 66 : 23 Ind. Cas. 649. The same view was taken by their Lordships in another case, Abdul Majid v. Jawahir Lal (1914) 36 All. 350 : AIR 1914 P.C. 66 : 23 Ind. Cas. 649. In that case the Courts in India had held that as there tad been an appeal to His Majesty in Council which was dismissed for want of prosecution the time for making an application for a final decree began to run from the date of the order dismissing the appeal before His Majesty in Council for want of prosecution. In repelling this contention, their Lordships made the following observations: Their Lordships see no foundation for this contention, which appears to have been the basis of the decision of the Courts below. The order dismissing the appeal for want of prosecution did not dell judicially with the matter of the suit and could in no sense be regarded as an order adopting or confirming the decision appealed from. 5. We are, therefore, of opinion that these two rulings of their Lordships of the Privy Council should be deemed to have overrule the view taken in Mohammad Raza v. Karbalai Bibi (1910) 32 All. 136 : 5 Ind. Cas. 473 : 7 A.L.J. 58,totre effect that an order of the appellate Court directing that an appeal had abated had the effect of confirming the decree of the lower Court. When an Appellant dies during the presence of an appeal and the appellate Court passes an order that the appeal has abated it cannot be said that there has been any judicial decision in the case. In the very nature of things such order does not amount to a judicial determination of the appeal. We, therefore, hold that there was no judicial decision in the appeal filed by Kesho Ram by this Court which could have the effect of confirming the decree of the first Court. 6. It was next contended on behalf of the Respondents that the appeal of Kesho Ram must be considered to be pending till the date of his death which took place in July, 1926, and as the application for a final decree was made within a period of three years from that date it should be treated as having been ride within limitation. We find ourselves unable to agree with this contention. Of course, the appeal remained pending till it abated. We find ourselves unable to agree with this contention. Of course, the appeal remained pending till it abated. But the question is whether the pendency of the appeal had the effect of extending the period of limitation. We do not think so. An application for a final decree has to be made within three years from the date fixed for payment by the preliminary decree. As already observed the preliminary decree passed by the trial Court was not superseded by any other decree or order of the Court of appeal and the application for final decree was made more than three years from the date fixed for payment. For these reasons we are of opinion that the present application by the Respondents was not within limitation. 7. The result is that the appeal is allowed, the order passed by the Court below is set aside and the Respondents' application for a final decree is dismissed with costs in both the Courts.