1. This second appeal arises out of a judgment and decree passed by District Judge, Vizag in A. S. No. 156/77 confirming an order of the District Munsif's Court, Chodavaram, passed in I. A. No. 102/76 in O. S. 93/70, in the court of the District Munsif, Chodavaram, the aforesaid I. A. No. 102/76 was filed by the present respondents under Order 26, Rule 30 of the Civil Procedure Code, praying that they might be brought on record as the legal representatives of the deceased-plaintiff in O. S. No. 93/70 D. M. C. Chodavaram, and a final decree might be passed against the present appellants who were the judgment debtors in the aforesaid suit. The present appellants opposed that I. A. 102/76. But both the courts below granted the relief to the present respondents. The defendants judgment-debtors filed this second appeal complaining against the orders of the District Judge.
2. O. S. No. 93/70 on the file of the District Munsif, Chodavaram, was filed by the sole plaintiff for partition and separate possession of 1/4th share of the plaint schedule properties. To that suit, the present appellants wee added as the defendants. On context that suit was dismissed by the learned District Munsif
on 30-6-71. The sole plaintiff appealed against that decree to the District Judge, Vizag in A. S. No. 201/74. Pending hearing of his appeal, the appellant dies on 2-10-75. But neither the appellant's lawyer nor the respondents' lawyer brought that fact of the plaintiff's death to the notice of the District Judge, Vizag presumably for the reason they did not themselves know about it. The Dist . Court, acting in ignorance of the fact of the sole appellant's death, heard the arguments of the lawyers on either side on 3-10-75 and delivered his judgment on 10-10-75 allowing the plaintiff's appeal and decreeing the suit for partition and separate possession. Accordingly, a preliminary decree was drawn. Later on the deceased plaintiff's wife and the son filed ceased plaintiff's wife and the son filed the aforesaid I. A. 102/76 asking for passing of a final decree after bringing them on record as the legal representatives of the deceased-plaintiff. In the two courts below that I. A. was unsuccessfully opposed by the defendants judgment-debtors.
3. It is contended by the appellants in this second appeal that the decree and judgment of the appellate Court dated 10-10-75 passed after the death of the sole appellant is a nullity, because they say, the suit had abated with the death of the plaintiff and without his legal representatives being brought on record. The contention of the defendants all through has been that as the decree of the District Court dated 10-10-75 was a nullity it could not be execute and I. A. 102/76 should not have been allowed.
3.-A. Surprisingly, the state of law on abatement does not appear to be certain. Although the Civil Procedure Code is reasonably clear on the point the judicial decisions appear to the wavering and conflicting. It appears to me that the judicial pronouncement did not attach sufficient importance to the scheme of Order 22 and the vital changes it has brought about in the law of abatement.
4. In earlier times, every change of interest caused by death or otherwise of a plaintiff termination or destruction of the proceedings. It is such termination of the proceedings. It is such termination of destruction of the proceedings that is called 'abatement'. Abatement of legal proceedings caused by death could not then be arrested. By even then, where right of action survived the death of a party, abatement although ensued was held to be curable. In other words, although abatement followed automatically the death of a party, the sting of ill effects of abatement was taken off by institution of separate proceedings curing abatement resurrecting the legal proceedings. But, now O. 22, R. 1 of Civil P.C. alters this legal theory by laying down a different rule. According to O. 22, R. 1 the death of a plaintiff or defendant could no longer cause the suit to abate if the right to sue survives. In other words, where the right to sue survives, abatement does not follow death. This is a statutory innovation enacted to alter the earlier rule of automatic abatement hither to brought about by death. The effect of it is to keep the legal proceeding pending. But how long and how far? But only so long as the period of limitation prescribed by the relevant statutory provision for bringing the legal representatives of the deceased party did not expire. Our adversary system of justice which requires the presence of parties before the court and without whom an effective and satisfactory adjudication based upon oral trial would be impossible will break down and cannot go on without whom an effective and satisfactory adjudication based upon oral trial would be impossible will break down and cannot go on without the opposing parties being brought before the court. Thus although automate abatement is altered by O. 22, R. 1 of Civil P. C. the requirement to bring the legal representatives of the deceased on record, cannot be done away with O 22, cord, cannot be done away with. O. 22, Rs. 3 (1) of Civil P.C., therefore, lays down that where . . . . 'a sole plaintiff . . . . .dies and the right to sue survives the court on an application in that behalf court on an application in that behalf shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.' The last few word of the above rule are more significant than eloquent. The words, 'and shall proceed with the suit' etc, mean that the court shall proceed with the suit after the legal representatives are brought on record. The Civil P.C. while directing that death shall not cause automatic abatement also directs that the court shall not proceed with the suit without bringing the deceased's legal representatives as parties before the court. This rule is enacted in recognition of the necessity for the parties to be present before the court in an adversary system of justice. Order 22 further contemplates the bringing in of these parties within a statutotirly fixed time. Till then the suit is kept alive by Order 22. It is Order 22, Rule 3(2) of Civil P.C. that lays down the consequences of abatement that should flow from non-compliance with the requirements of O. 2, R. 3(1). O. 22, R. 3(2) enacts that 'where within the time limited by law no application is made under sub-rule (1) the suit shall abate so far as the deceased plaintiff is concerned.' It is Order 22, Rule 3 (2) that provides for abatement of the suit. However, operation of O. 22, R. 3(2) is postponded till the very end of period of limitation prescribed by law for bringing the legal representatives. Till then the suit is kept alive by reason of Order 22, Rule R. 3(1) that directs the parties to bring the legal representatives of the deceased on record and to the court not to proceed with the case without those legal representatives being brought on record. The question is whether the orders of court made in a suit before it abated under O. 22, R. 3(2) without parties complying with O. 22, R. 3 (1) can be regarded as a nullity. This question calls for an examination of the importance of the presence of parties, before court. As Patrick Delvin said, 'the centrepiece of adversary system is the oral trial.' (See his 'THE JUDGE' page 54). But we must not that the game can go on at appellate stages even without that centrepiece.
5. Now a combined reading of the above provisions of the Civil P.C. shows that the suit abates only on the expiry of the time allowed by the statute for bringing the legal representatives of the plaintiff on record. Till then the suit cannot and will not abate, because O. 22, R. 1 of the Civil P.C. enacts a new rule differing from the earlier rule of instantaneous abatement resulting from death. The proceedings of the court recorded during that period cannot, therefore, be regarded as null and void on the ground that the suit has abated. Such proceedings can only be found fault with if at all for having been conducted in violation of the last mandate contained in O. 22, R. 3(1) which directs that the suit shall proceed only after the legal representatives of the deceased plaintiff are brought on record. The question that then arises is whether the disregard of the above direction contained in O. 22, R. 3(1) of Civil P.C. would render the decree and the judgment of the court a nullity. In other words, should O. 22, R. 3(1) Civil P.C. would render the decree and the judgment of the court a nullity. In otherwords, should O. 22, R. 3 (1) Civil P.C.. be treated as mandatory. It appears to me that considering the purpose of O. 22, R. 3 (1) Civil P.C. that provision cannot be regarded as mandatory. As we have noted above, the purpose of O. 22, R. 3(1) is to fulfil the need to bring the parties before court which is no doubt essential in our adversary system of justice. As Delvin says, the rule being this requirement is that oral trial cannot be conducted in the absence of the parties. Conflicting claims in a civil case can be adjudged only on the basis of legal evidence. Evidence has to be tested in open court subject to its relevancy and admissibility. It follows therefor that in a trial court where evidence has to be tested and recorded and documents have to be marked the trial cannot be proceeded with even after the sole plaintiff had died without his legal representatives being brought on record. In that situation, O. 22, R. 3 (1) should be strictly complied with and proceedings conducted in defiance of that rule should be regarded as nullity. But this is not so much for the reason that such proceedings violated the rule of abatement as for the reason that such proceedings were conducted in violation of a basic requirement of an oral trial based on evidence. It follows that the last direction contained in O. 22, R. 3 (1) of Civil P.C. cannot be dispensed with in a trial court. But the same cannot be said about an appeal where the sole appellant died. In an appeal where normally no oral trial takes place and no fresh evidence is taken. By the time the legal proceedings reach the appellate stage all this would have been over. The concern of the appellate Court is mainly confined to an examination of the correctness of the judgment of the lower court by reference to the applicable law and the material already gathered. The hearing of an appeal and rendering of a judgment, would not suffer in any way for failure to bring the legal representatives of he deceased-appellant: on record. For that reason that proceedings of the appellate court cannot be regarded as nullity on the ground of non-compliance with O.22, R. 3(1) of Civil P.C. provided the appeal did not abate under O. 22, R. 3(2), Civil P.C. by lapse of time prescribed for bringing the legal representatives on record. The reason is that in an appeal the requirement of presence of the appellant is only of minimal importance and is not so vital for the hearing of an appeal, as the presence of a plaintiff undoubtedly would be to proceed with the trial of a suit. It follows, that the last direction of O. 22, R. 3(1) of Civil P.C. as applied to the hearing of an appeal should not be read as absolute and inflexible. It should be regarded merely as directory. Superficially looked at, it may appear to be arguable that O. 22, R. 6 negatives this line of reasoning, because that order omits providing for hearing after death while providing for delivered after death provided hearing took place while the part is alive does not deal with the question of the presence of the parties. That question is left to be dealt with by O.22, Rr1. And 3. In fact, O. 22, R. 6. Enacts a winder rule that dispenses with the general requirement that right to sue should survive. O. 22, R. 6 should be read along with O. 22, R. 1 and O. 22, R. 3. This done O. 22, R. 6 enacts, in my opinion, no bar to the hearing of the appeal even after the death of the appellant; provided no further evidence is called for.
6. In Raddulal v. Mahabir Prasad, : AIR1959Bom384 a Division Bench of the Bombay High Court ruled that a preliminary decree for foreclosure of a mortgage passed by the court in ignorance of a fact of the death of one of the several plaintiffs was not a nullity. This is a strong case against the appellant's argument, because that judgment upheld a trial Court's order passed after the death of the plaintiff. The reasoning there adopted by the Division Bench of the High Court, no doubt is different from the one which I followed in this judgment. But it appears to me that the Bombay judgment can be supported on the basis of the reasoning adumbrated here. In many cases which have taken a contrary view from the one which I have taken here the effect of Order 22, Rue 1 does not appear to be fully explored. Once it is accepted that rule of automatic abatement is altered by Order 22, R. 1 and the point of abatement is postponed till the expiry of the period of limitation and addition of parties is regarded as directory it should be held that a decree passed before the expiry of the period of limitation for bringing in the legal representatives is not a nullity.
7. In the present case, the suit is one for partition. All the evidence had been recorded by the trial court. The appellate Court passed its judgment only on the basis of the evidence recorded by the trial court and the judgment was passed within the statutory limit. In those circumstances, I hold that the order of the appellate Court under appeal is right.
8. The appellants have cited a judgment of the Division Bench of the Madras High Court reported in American Baptist Mission v. Pattabhiramayya, AIR 1919 Mad 685 and also a judgment of the Calcutta High Court reported in Kedarnath v. Khaitan Sons & Co. : AIR1959Cal368 . I do not find that the questions which have been discussed hereinabove were adverted to at all. Particularly the paramount significant which the Civil P.C. attaches to O. 22, R. 1 repealing the rule of automatic abatement, does not appear to have considered.
9. I accordingly dismiss the second appeal with costs. There shall be a direction t the lower Court to pass a final decree within two months from the date of receipt of this order. There shall also be a further direction that the decree shall be executed within six months from the date of receipt of this order.