1. The petitioners before this Court are the respondents in R. A. No. 147 of 44-45 on the file of the First Additional Subordinate Judge, Bangalore. The first respondent herein is one Ramakrishnaiah who died on 9-1-1945 when the appeal was pending before the lower Court. The said Ramakrishnaiah filed a suit on 6-11-43 for declaration and possession of the suit schedule properties in the Court of the Munsiff of Dodballapur. The suit was dismissed on 7-11-1944. The said Ramakrishnaiah Tiled an appeal on 3-1-1945 before the District Judge, Bangalore and on 19-1-1945 it was reported to the Court that the appellant was dead. The case was adjourned to 29-1-1945 to bring the legal representative on record. I. A. No. 1 was filed on 29-1-1945 to bring one Ramachandriah as the legal representative of the deceased Ramakrishnaiah. Notices were ordered on29-1-1945 to be served by 2S-2-1945. In the meanwhile, on 30-1-1945 the appeal was transferred by the District Judge to the Subordinate Judge who issued notices to the respondents and after service the appeal was disposed of by arguments on30-3-1946 with the result, that the dismissal order of the trial Court was set aside and the suit was remanded by allowing the amendment application of the defendant for fresh disposal according to law. After remand, objections were taken in the trial Court that there was no living plaintiff represented in the suit and that the suit was dismissed as there was no party to prosecute the suit. Against that order, C. R. P. No. 115 of 41-43 was filed.
2. It may be observed here that no notices were served on the respondents to give intimation of the L. R. application filed by Ramachandriah with the result that the application was lost sight of by the appellant and the Court. No final orders were passed nor any legal representative brought on record before the appeal was disposed of on merits. In the revision petition above adverted to, the High Court observed that since no orders were passed on the L. R. application which was necessary for the progress of the case, the suit ended in dismissal in the Munsiff's Court and that the mere filing of the petition willnot entitle the petitioner to proceed with the suit. That being so, the High Court declined to interfere with the order in revision with an observation that the petitioner may seek his own remedy in other proceedings according to law.
The petitioner then filed an application before the First Additional Subordinate Judge (Court of Small causes;. Bangalore under Sections 151 and 152, Civil P. C. Objections were called for and filed by the defendants on 11-0-1918. The main points urged arc that the petitioner has no locus standi' to maintain the application as he was not a party to the proceedings and the application was belated, it is also stated in the objection statement that the deceased Ramakrishnaiah has left behind him his wife and children and the status of the petitioner also is disputed. The learned Subordinate Judge states that the default in not having brought the legal representative on record constituted an error or omission on the part of the Court and on that ground he allowed the application and made, what he calls, a formal order directing Ramachandriah to be brought on record as the legal representative of the deceased appellant.
He further directed the lower Court to take the suit on file and dispose it of as directed in the remand order of that Court dated 30-3-1946. In effect, the order on this application constitutes a reversal of the judgment and decree of the Court below which cannot be done under the guise of correction of an error or omission under Sections 151 and 152, Civil P. C.
3. Sri B. V. Balaji, learned counsel for the petitioners contends that at the time of arguments his party never knew the death of the appellant and the case went on as if the appellant was alive. If, as a matter of fact, the appellant was dead on that date, the judgment and the further proceedings are a nullity. The omission to bring the legal representative on record within 90 days from the date of the death of the appellant should automatically operate as abatement of the suit. It cannot be that the legal representative of the appellant could be brought on record more than two years after the death of the appellant and as such, the interference of the lower appellate Court below works prejudice so as to take away the right which is vested in his clients.
4. Sri B. Neelakanta contends that the legal representative's application was pending in the Subordinate Judge's Court and it was not finally disposed of. As it is an omission without disposal, the trial Court has still jurisdiction to rectify the omission; otherwise, the plaintiff will have no remedy and suffers loss and damage. Sri Neelankanta relies upon some cases to substantiate his position. One such is reported in -- 'Namdar Chand v. Bansidhar' 1893 All W N 181 (A), wherein similar circumstances arose, the Court held that on the death of one of the defendants, no application to bring the legal representatives was filed, but vakalats were filed on behalf of the legal representatives, with the result that both the parties took part in the further proceedings as if the legal representatives were brought on record though an order to bring the legal representatives was not expressly passed. So, the objection that the legal representative was not brought on record was considered to be a technical one and overruled.
5. Sri Balaji on the other side, relies upon --'10 Mys L J 269 (B); -- 'Badal Khan v. Murtaz', 9 Ind Gas 977 (All) (C); -- 'Phekhu Tewari v. Bhagwat Lal' AIR 1935 Pat 4 (D) and -- Ro-mesh Chandra v. Anthony Penheiro' AIR 1918Cal 690 (E). The effect of these decisions is thatthe suit abates if the legal representative is notbrought on record within time.
6. The important point for decision is whether the Subordinate Judge who dealt with the appeal was competent under Sections 151 and 152, Civil P. C., to direct the legal representative to be brought, on record after the disposal of the appeal and alter the suit was dismissed in the trial Court when he was not actually sewed with jurisdiction and whether in view of the fact that the judgment; was passed with a dead person on record and if the further proceedings are to be ignored altogether the appellate Judge could have jurisdiction to amend the decree by bringing the legal representative on record. This point, does not appear to be free from difficulty and I feel that, since no other precedent except the All. Weekly Notes above referred to, was quoted before me-during arguments and since there is no other case also of our own High Court bearing specifically on the points raised, it appears desirable to refer the matter to a Bench for a considered ruling on the-point.
7. The petition is, therefore, directed to be placed before a Bench for disposal.