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4. The real contest in the final decree proceedings arises this way. Pending the second appeal, the second defendant, Chandanom, who was shown as the 5th respondent in S.A. No. 1189 of 1956 died. On her death, as pointed out by the trial court in this matter, a memo was filed in this Court on 9-7-1956 on which it was recorded by this Court on 17-7 1956 that there was none to be impleaded as the legal representative of the deceased fifth respondent, i.e., the second defendant. In the other second appeal. S.A. No. 1251 of 1956 in C.M.P. No. 11132 of .1956 on the death of Innasi Soosah, his heirs were brought on record as legal representatives by order dated 31-3-1959. The final decree application was opposed by defendants 4 and 14, that is the plaintiffs in O.S. No. 459 of 1122, on the basis that the action had abated for the reason that the legal representatives of the second defendant had not been brought on record in time. Thereupon in the final decree application, I.A. No. 1186 of 1961, the plaintiff applied by I.A. No. 1443 of 1961 to add as party-defendants in the suit, the legal representatives of Innasi Soosah who alone of the heirs of the second defendant were not already on record, This was opposed, the main contention being that Chandanom had died pending the second appeal, and neither Innasi Soosah, nor his heirs had been added as her legal representatives in the second appeal.

In the connected matter the legal representatives of Innasi Soosah had been impleaded. Now the plaintiff was seeking to get the heirs of Innasi Soosah as the legal representatives of the deceased second defendant after a number of years after there had been an abatement as against the second defendant. To maintain the application, the excuse put forward was inter alia that in the connected suit, the heirs of Innasi Soosah had been impleaded. This naturally was not accepted. The trial court observed that the plaintiff ought to have impleaded Innasi Soosah as the legal representative of the second defendant when she died and later on his death brought on record his heirs as legal representatives and no diligence had been shown in the matter. An irresponsible charge has been made that his Counsel in this Court had acted against his interest by filing a memo dated 9-7-1956. Quite properly this plea was rejected. The Court then proceeded to hold that in the circumstances there was an abatement of the second appeal, so far as the second defendant was concerned. In this view the final decree for redemption was confined to the other persons on record. The decree specifically provided that the plaintiff could take delivery of possession of the property from the defendants barring the second defendant and her legal representatives.

5. On appeal therefrom before the learned Subordinate Judge, for the plaintiff reliance was placed on Order XXII Rule 4, C.P.C. as it stands in this State, and it was contended that it was not necessary to implead the legal representatives of the deceased second defendant, who had been ex parte. Certain other contentions were also put forward; but they do not merit consideration. The learned Subordinate Judge overruled the case based on Order XXII Rule 4 (4) and took the view that there has been an abatement. He overruled the plea that there could be no abatement in the case. He held that there was no valid decree binding on the second defendant. The plaintiff had claimed mesne profits from the date of deposit. This had not been considered by the trial court and the appellate court allowed this claim of the plaintiff as against the other defendants at a specified rate. It is in these circumstances that the plaintiff has come up to this Court in Second appeal, contending that there could be no question of abatement in respect of the second defendant in the suit. A ground has also been raised that mesne profits should have been award-, ed from the date of deposit of the mortgage money. The principal grievance in the Second appeal, as I see it, is that in the final decree as now provided, it is said that the plaintiff could take delivery of possession of the property from the defendants barring the second defendant and her legal representatives.

We do not speak of the existence of a right to sue against or the survival of the right when no relief is sought against a particular respondent. Rule 9 states that on abatement no fresh suit shall be brought on the same cause of action.

Reading Rule 4 (1) with Rule 9 it is clear that there is no question of any abatement in the case of a purely pro forma respondent. But it is unnecessary for the purpose of the present case to consider this aspect of the matter.

17. Equally another ground for appeal urged does not call for any elaborate consideration. It is submitted by the appellant that there are other heirs of the second defendant already on record and that therefore there has been substantial representation. It is submitted that when already there are legal representatives of the deceased on record there can be no question of abatement. As I am satisfied that this is a case where Order XXII Rule 4 (4) applied and the order made by this Court on 17-7-1957 must be deemed to be one made having regard to that provision, it is unnecessary to examine the tenability of the other arguments submitted for the respondents. The contesting respondents, it may be pointed out, have suffered no prejudice by their not being brought on record earlier. They cannot put forward any case inconsistent with what could have been urged by the second defendant. The other heirs of the second defendant have been there already on record. The only defence that had been put forward to the action was based upon the agreement, Ex. A, and this Court has in the connected appeal negatived the interest of other persons in the mortgaged properties it follows that when this Court passed the preliminary decree it must be deemed to have pronounced the decree in the presence of the second defendant also before his death took place. The application for a final decree, in the circumstances, seeking to have the final decree passed in the presence of not only of those heirs of the second defendant already on record but also others is quite in order having been made within three years of the preliminary decree.