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B. Venugopalacharya and anr. Vs. B. Tatachari and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKarnataka High Court
Decided On
Case NumberCivil Revn. Petn. No. 1862 of 1971
Judge
Reported inILR1974KAR818; 1974(2)KarLJ271
ActsCode of Civil Procedure (CPC), 1908 - Order 22, Rules 3(2) and 4 - Order 1, Rule 10 - Order 17, Rules 2 and 12; Karnataka High Court Act, 1961 - Sections 8(2)
AppellantB. Venugopalacharya and anr.
RespondentB. Tatachari and ors.
Appellant AdvocateMurlidhar Rao, Adv.
Respondent AdvocateM.P. Ganapathy Bhat as amicus curiae
Excerpt:
.....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 when 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 income from these villages. after passing of the preliminary decree, the plaintiff initiated final decree proceedings during the pendency of which defendant-3 died on 6-9-1965. it was only on 26-7-1966 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 order 22, rule 4, c. p. c., do not apply to proceedings in the suit subsequent to the preliminary decree and that hence the suit did notabate. exercising the powers under order 1, rule 10, c. p. c., the learned munsiff brought on record the legal representatives of deceased.....
Judgment:
ORDER

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 Jaw.

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 Division Bench under the proviso to Sub-section (2) of Section 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 Sri-nivasacharya 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-3 died on 6-9-1965. It was only on 26-7-1966 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 Order 22, Rule 4, C. P. C., do not apply to proceedings in the suit subsequent to the preliminary decree and that hence the suit did notabate. Exercising the powers under Order 1, Rule 10, C. P. C., 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 Lachmi Narayan v. Balmakund, AIR 1924 PC 198, many High Courts had taken the view that Rules 3 and 4 of Order 22, C. P. C., would apply to final decree proceedings also.

7. In Subbarayadu v. Ramadasu, AIR 1923 Mad 237 (1), a Division 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 of Order 22, C. P. C. Their Lordships observed thus :

'The right to sue obviously from the terms of the rule includes the right to proceed with the suit until the latter terminates and in the case of a mortgage suit, where a preliminary decree and a final decree 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 of Order 22, C. P. C.

8. In AIR 1924 PC 198 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 Subordinate Judge to work out the terms of the partition. Before the Subordinate Judge the plaintiff failed to appear on the date of hearing. Thereupon, the Subordinate Judge dismissed the suit for want of further prosecution. The High Court set aside the order of the Subordinate 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 made 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 incurredliabilities 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 Order 17 Rule 2, C. P. C. these observations were regarded by many High Courts as having a bearing on the question whether Rule 3 or Rule 4, of Order 22, C. P. C. 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, AIR 1923 Mad 237 (1) Coutts-Trotter, C. J., who delivered the opinion of the Full Bench said thus at p. 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 out of accounts and so forth, is a mere subsequent defining of the effect that is to 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 when 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 Order 22, C. P. C. 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. Tamizaddi Ahamed : AIR1929Cal430 . 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 : AIR1940Bom318 , a Bench of the Bombay High Court also held that Rules 3 and 4 of Order 22, C. P. C. do not apply to a case 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 construction of Rules 3 and 4 of Order 22. Beaumont, C. J., 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 would 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 (Second Edition) 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 supersedeas.'

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 dissent was by the Allahabad High Court. In Anmol Singh v. Hari Shankar Lal : AIR1930All779 , 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 Lachmi Narain Marawari's case AIR 1924 PC 198 were with reference to Order 17, Rule 2, C. P. C., and that the principle underlying that decision has no application to the question whether Rules 3 and 4 of Order 22 would apply to the final decree proceedings. Their Lordships 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 Order 22, Rule 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 clear in Rule 12 .....'

15. While we respectfully agree with the dictum of the Allahabad 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 Order 22, C. P. C. 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 of 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 Order 22, C. P. C. applies to a suit after a preliminary decree is made therein, though the suit may, as pointed out by the Allahabad High Court, continue 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 abate in spite of the plaintiff not making an application to bring thelegal representatives of deceased defendant-3 within the period of 90 days from the date of the death of defen-dant-3. The learned Munsiff was also right in adding such legal representatives as parties under Order 1, Rule 10 Civil Procedure Code.

18. In the result, this revisionpetition fails and is dismissed. As therespondents are absent and unrepre-sented, there will be no order as tocosts in this petition.

19. Revision dismissed.


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