Short Note : 1. The suit giving rise to this appeal was instituted by the plaintiff-appellant Dhannusa for sale of suit land on the basis of a mortgage. The plaintiff's case was that defendant No. 1 Isna mortgaged Khasra No. 278/2 of village Chapora, tahsil Burhanpur, in favour of the plaintiff for a sum of Rs. 450/- with interest at 1% per month. It was also alleged that defendant No. 2 Kashiram was the surety for defendant No. 1 and defendant No. 3 Hari was the subsequent purchaser of equity of redemption from defendant No. 1. The plaintiff prayed for recovery of Rs. 763/- which according to him was due on the date of the suit, by sale of the mortgage property. A preliminary decree for sale was passed in the plaintiff's favour on 25th February 1961. The plaintiff applied for a final decree on 10th February 1964. The defendant No. 1 then applied on 27th August 1964 stating that defendant No. 3 Hari had died on 12th February 1961 before the passing of the preliminary decree and, therefore, no final decree could be passed. The plaintiff made an application for joining the legal representatives of defendant No. 3 on 29th September 1964 under Order 22, rule 4, the Code of Civil Procedure. On 4th November 1965, the plaintiff applied under section 5 of the Limitation Act for condonation of delay in respect of the period from 12th February 1961 to 29th September 1964 on the ground that the plaintiff came to know about the death of defendant No. 3 only on 27th August 1964 when defendant No. 1 filed his reply to the application for final decree. On 11th November 1965, the plaintiff applied under Order 22, rule 9, of the Code read with section 5 of the Limitation Act for setting aside the abatement. These applications were dismissed by the trial Court. The plaintiff preferred an appeal which was also dismissed by the District Judge, East Nimar, Khandwa. The plaintiff then filed the present second appeal. On 11th November 1965, the plaintiff applied under Order 22, rule 9, of the Code read with section 5 of the Limitation Act for setting aside the abatement. These applications were dismissed by the trial Court. The plaintiff preferred an appeal which was also dismissed by the District Judge, East Nimar, Khandwa. The plaintiff then filed the present second appeal. Held : It is settled law that there can be no abatement of a suit after a preliminary decree when a defendant dies after passing of such a decree, but a decree passed against a defendant who is dead is a nullity and, therefore, in the instant case it cannot be said that there was any preliminary decree against defendant No. 3 had died prior to the passing of the preliminary decree and before the date fixed for evidence. A mortgage suit does not come to an end after the passing of a preliminary decree and remains pending till a final decree is passed. The plaintiff should have, therefore, applied under Order 22 for joining the legal representatives of the deceased defendant No. 3 within limitation. As the plaintiff failed to do so, the suit abated against defendant No. 3. As earlier stated, the application for setting aside the abatement was made in November 1965. The first appellate Court has found no sufficient cause for the delay in making the application for setting aside the abatement. This is a finding of fact. The position, therefore, is that the suit abated against defendant No. 3. I have taken note of the fact that on the date when the preliminary decree was passed, limitation for joining the legal representatives of defendant No. 3 had not expired. When a suit is finally decided against a dead defendant at a time when limitation for joining the legal representative has not expired, it has sometimes been said that Order 22 will have no application and that application for bringing in the legal representatives and for obtaining a decree against them has to be made under section 151 of the Code. This is a tricklish question but, as at present advised, the position would be different where, as in the instant case a decree against a dead defendant does not terminate the suit and the suit is still pending in the trial Court. This is a tricklish question but, as at present advised, the position would be different where, as in the instant case a decree against a dead defendant does not terminate the suit and the suit is still pending in the trial Court. The facts in the instant case are similar to the facts in Seshamma v. Yearanki Peda Venkata Rao (A.I.R. 1924 Madras 713). In this case it was held that when a preliminary decree was obtained against a dead defendant the plaintiff should have applied under Order 22 for setting aside abatement and for bring on record the legal representative. In my opinion the District Judge was right in holding that no decree, preliminary or final, could be passed against the legal representative of deceased defendant No. 3. The District Judge is also right in holding that in the absence of the legal representatives of defendant No. 3, there could be no decree for sale of the mortgaged property which was in possession of defendant 3's legal representatives. I have examined the terms of the mortgage deed and I find that the District Judge is further right in holding that the personal liability of defendants 1 and 2 for making payment of the mortgage debt could arise only after it was found that the sale proceeds of the mortgaged property were insufficient to pay off the debt. As the mortgaged property cannot be sold because of the default of the plaintiff, he cannot even be held to be entitled to any personal decree against defendants 1 and 2. Appeal dismissed.