( 1 ) THE question that arises for determination in this revision petition, is whether after a preliminary decree is made, a suit abates against one of the defendants who died thereafter, for not bringing on record his legal representatives within the time limited by law. ( 2 ) AS there are conflicting decisions of different High Courts on the above question and there does not appear to be any ruling of this Court on this question the learned single Judge before whom this petition came up in the first instance, has referred it to a Divn. Bench under the proviso to sub-sec. (2) of S. 8 of the Karnataka High Court Act 1961. ( 3 ) THE facts which led up to this petition are briefly these One tathachari brought a suit against Srinivasacharya and 2 others for rendering accounts in respect of certain Jahagir Inam villages. A preliminary decree was made in the suit declaring that the plaintiff is entitled to receive 1/4th share in the income from these villages After passing of the preliminary decree, the plaintiff initiated final decree proceedings during the pendency of which defendant 2 died on 6-9-1965. It was only on 26-7-66 that the plaintiff made an application for bringing on record the legal representatives of deceased defendant 3. That application was opposed by the other defendants and the legal representatives of deceased defendant 3 who contended that the suit had abated. ( 4 ) THE learned Munsiff held that the provisions of Or. 22, Rule 4, cpc, do not apply to proceedings in the suit subseauent to the preliminary decree and that hence the suit did not abate. Exercising the powers under Or. 1, R. 10 CPC, the learned Munsiff brought on record the legal representatives of deceased defendant 3. ( 5 ) THE correctness of the order of the learned Munsiff has been questioned in this petition. As the respondents were absent and unrepresented, mr. P. Ganapathy Bhat, Advocate, was requested to appear as 'amicus curiae'. He acceded to the request and addressed arguments. We are grateful to him for his valuable assistance ( 6 ) PRIOR to the decision of the Judicial Committee of the Privy Council in Lakshmi Narayan v. Balamukud, AIR. 1924 PC. 198. manu High Courts, had taken the view that Rules 3 and 4 of Or. 22 CPC, would apply to final decree proceedings also. We are grateful to him for his valuable assistance ( 6 ) PRIOR to the decision of the Judicial Committee of the Privy Council in Lakshmi Narayan v. Balamukud, AIR. 1924 PC. 198. manu High Courts, had taken the view that Rules 3 and 4 of Or. 22 CPC, would apply to final decree proceedings also. ( 7 ) IN Subbarayadu v. Ramadasu, AIR. 1923 Mad. 237. a Divn. Bench of the Madras high Court held that where the plaintiff died after the preliminary decree has been made in a mortgage suit, an application by his legal representatives to be brought on record should be made under Rule 3 and not rule 10, cf Or. 22 CPC. Their Lordships observed thus :" The right to sue obviously from the terms of the rule includes the right to prccped with the suit until the latter terminates and in the case of a mortgage suit, where a preliminary decree and a final dtcree are both necessary, the right to sue must include the right to obtain a final decree after the passing of a preliminary decree. "in that case, as the legal representative of the plaintiff did not make an application within the time allowed by law, to come on record in her place, their Lordships held that, the suit abated under sub-rule (2) of Rule 3, order 22 CPC. ( 8 ) IN Lakshmi Narayan v. Balamukund the facts were these: The parties had entered into a compromise and on that basis the High Court passed a decree for partition and thereafter referred the suit to the Sub. Judge to work out the terms of the partition. Before the Sub. Judge, the plaintiff failed to appear on the date of hearing. Thereupon, the Subjudge dismissed the suit for want of further prosecution. The High Court set aside the order of the Sub. Judge, Upholding the decision of the High court, their Lordships of the Privy Council observed thus at page 200:" After a decree has once been mrde 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 Habilties which are fixed, unless or until the decree is varied or set aside. " ( 9 ) THOUGH the aforesaid observations were made by the Privy Council while dealing with the question under Or. The parties have, on the making of the decree, acquired rights or incurred Habilties which are fixed, unless or until the decree is varied or set aside. " ( 9 ) THOUGH the aforesaid observations were made by the Privy Council while dealing with the question under Or. 17, R. 2 CPC, these observations were regarded by many High Courts as having a bearing on the question whether Rule 3 or Rule 4 of Or. 22 CPC. , is applicable to final decree proceedings in a suit. ( 10 ) RELYING on the aforesaid observations of the Privy Council, a Full bench of the Madras High Court in Perumal Pillai v. Perumal Chetty, AIR. 1928 Mad. 914 overruled its earlier decision in Subbarayadu's case (2 ). Coutts-Trotter, cj. , Who delivered the opinion of the Full Bench said thus at page 918 :" Without discussing that case in detail it seems clearly to proceed on the basis that a preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working put of accounts and so forth, is a mere subsequent defining of the effect that is tq be given to the declaration of right which is contained and finally determined (subject, of course to appeal) in the preliminary decree. We think that the principle underlying that case whereafter preliminary decree the plaintiff did not appear whether the case came on for final decree and the case was struck out a course which the Privy council disapproved on the grounds we have mentioned, applies by analogy just as much to a case where a man does not appear because he cannot appear since he is dead. "the Full Bench opined that Rules 3 and 4 of Or. 22 CPC do not apply to final decree proceedings. ( 11 ) THE decision of the Full Bench of the Madras High Court, was followed by a Bench of the Calcutta High Court in Nazir Ahmad v. Tamijaddi Ahamed, AIR. 1929 Cal. 430. "the Full Bench opined that Rules 3 and 4 of Or. 22 CPC do not apply to final decree proceedings. ( 11 ) THE decision of the Full Bench of the Madras High Court, was followed by a Bench of the Calcutta High Court in Nazir Ahmad v. Tamijaddi Ahamed, AIR. 1929 Cal. 430. Mitter, J. , who spoke for the Bench said that although the aforesaid observations of the Privy Council were made in a case where after a preliminary decree for partition was made, the plaintiff did not appear when the case came on for final decree and the case was struck off the same principle should apply to a case in which the plaintiff did not appear because he could not appear as he was then dead. ( 12 ) IN Dawarali Jafarali Saiyad v. Bai Jadi, AIR. 1940 Bom. 318. a Bench of the Bombay High Court also held that Rules 3 and 4 of Or. 22 CPC. , do nqt apply to a ease in which a preliminary decree has been made But their Lordships reached that conclusion not on the basis of the aforesaid observations of the Privy Council, which they considered were of a general nature and could not be regarded as conclusive on that question, but on the construetion of Rules 3 and 4 of Or. 22. Beaumont, CJ. , who spoke for the Bench, said that where a preliminary decree has been passed, it would be quite inappropriate to talk about the right to sue surviving, as the rights of the parties would be crystallised by the preliminary decree and it would no longer be open to the plaintiff to sue in respect of his original cause of action. His Lordship added that all that the plaintiff can do after the passing of the preliminary decree is to enforce his rights thereunder and that his application for a final decree cannot be regarded as an application in respect of the original right to sue. His Lordship further added that although the suit may be continued to enforce the right declared under the preliminary decree, it wo,uld be inappropriate to refer to the right to sue as either surviving or not surviving after the preliminary decree is passed. His Lordship further added that although the suit may be continued to enforce the right declared under the preliminary decree, it wo,uld be inappropriate to refer to the right to sue as either surviving or not surviving after the preliminary decree is passed. ( 13 ) THE effect of the death of a party, after judgment, has been stated thus in American Jurisprudence (2nd Edn.) at page 94:" That which up to the moment of the entry of judgment for the relief sought was a matter in controversy becomes an absolute debt of one party to the other. The cause of action ceases to exist, being merged in the judgment; and consequently, so long as the judgment remains in force, the rule on survival has no further application. This is true though the proceedings are stayed by appeal and supersedes. " ( 14 ) THE decisions of the High Courts of Madras, Bombay and Calcutta, were followed by the High Courts, of Punjab, Nagpur, Patna and rajasthan. But, the lone dissenl was by the Allahabad High Court. In anmol Singh v. Hari Shankar Lal, AIR. 1930 All. 779. a Bench of the Allahabad High court consisting of Sulaiman, J. (as he then was), and King J. , said that the observations of the Privy Council in Lakshim Narain Marawari's case (l) were with reference to Or. 17, R 2 CPC. , and that the principle underlying that decision has no application tc the question whether Rules 3 and 4 of Or. 22 would apply to the final decree proceedings. Their Lordshps observed at page 782 :". . . . A decree is preliminary when further proceedings have to be taken before the suit can be completely disposed of: It is final when such an adjudication completely disposes of a suit. There cannot therefore be the least doubt that under the Code of Civil Procedure now in force the suit does not terminate by the passing of the preliminary decree but continues till it is finally and completely disposed of by the passing of the final decree. . . . . NOW when the suit is still continuing even after the passing of the preliminary decree, it is difficult to see how Or. 22, R. 4, cannot be applicable to it. It expressly states that the ' Court' shall proceed with the suit". . . . . NOW when the suit is still continuing even after the passing of the preliminary decree, it is difficult to see how Or. 22, R. 4, cannot be applicable to it. It expressly states that the ' Court' shall proceed with the suit". There seems to be no reason to restrict the meaning of the word ' suit' in this particular rule and say that there ' suit' means the stage in the suit up to the passing of the preliminary decree only and not thereafter. . . . . It may further be pointed out that Rule 12 of that order expressly excludes the operation of Rule 4. from proceedings in execution of a decree or order and does not exclude its operation in the case of proceedings between the preliminary decree and the final decree. Had the legislature intended to exclude such proceedings the position would have been made dear in Rule 12. . . . . " ( 15 ) WHILE we respectfully agree with thedictum of the Allahabad High high Court that a suit does not terminate with the passing of a preliminary decree but continues till the final decree is made it appears to us that their Lordships of the Allahabad High Court did not pay sufficient attention, if we may say so with great respect, to the question whether the right to sue can be said to survive after a preliminary decree is made. Both Rules 3 and 4 of Or. 22 CPC will come into operation only where the right to sue survives. Once a preliminary decree has been made, there is no fresh right to, sue in respect ol the same cause of action. ( 16 ) WITH due respect to the Allahabad High Court, we prefer to follow the view taken by the other High Courts that neither Rule 3 nor rule 4 of Or. 22 CPC. , applies to a suit after a preliminary decree is made therein, though the suit may, as pointed out by the Allahabad High Court, continues till the passing of the final decree. 22 CPC. , applies to a suit after a preliminary decree is made therein, though the suit may, as pointed out by the Allahabad High Court, continues till the passing of the final decree. ( 17 ) IN the present case, as the preliminary decree had been made before defendant 3 died, the learned Munsiff was right in holding that the suit did not aba,te in spite of the plaintiff not making an application to bring the legal representatives of deceased defendant 3 within the period of 90 days from the date of the death of defendant 3. 1 he learned Munsiff was also right in adding such legal representatives as parties under Or. 1, rule 10 Civil Procedure Code. ( 18 ) IN the result, this revision petition fails and is dismissed. As the respondents are absent and unrepresented, there will be no order as to costs in this petition. --- *** --- .