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P.M.M. Pillayathiri Amma Vs. K. Lakshmi Amma and ors. - Court Judgment

LegalCrystal Citation
SubjectCommercial
CourtKerala High Court
Decided On
Case NumberC.R.P. No. 1114 of 1964
Judge
Reported inAIR1967Ker135
ActsCode of Civil Procedure (CPC) , 1908 - Sections 115 and 151 - Order 9, Rules 6, 8, 9 and 13 - Order 22, Rules 1, 3, 4, 5, 9 and 10 - Order 43, Rule 1 and 1(1); ;Limitation Act, 1908 - Sections 5 - Schedule - Articles 171 and 177
AppellantP.M.M. Pillayathiri Amma
RespondentK. Lakshmi Amma and ors.
Appellant Advocate V. Bhaskaran Nambiar, Adv.
Respondent Advocate K. Velayudhan Nair,; M.C. Sen,; T.K.M. Unnithan and;
DispositionPetition allowed
Cases ReferredKesavan v. Abraham.
Excerpt:
commercial - revision - sections 151 of code of civil procedure, 1908 -decision by itself is not appealable to high court directly or indirectly - high court is competent to exercise its revisional jurisdiction under section 115 - under appropriate circumstance, set aside and matter remitted for fresh consideration. - - 344/62 the petitioner has filed the 4 other applications as contemplated under the code, and by not adjudicating on the merits on those applications, the trial court has failed to exercise the jurisdiction vested in it by law. such an application is perfectly maintainable and the court has ample jurisdiction to pass suitable orders in the interests of justice especially when other substantive applications were also before the court. the learned counsel for the.....orderc.a. vaidialingam, j.1. in this revision, mr. v. bhaskaran nambiar, learned counsel for the plaintiff-petitioner, challenges the order of the learned munsif rejecting r. i. a. 344/62.2. the plaintiff instituted o. s. 285/60, munsif's court, payyanur for recovery of amounts stated to be due from the sole defendant one kelu nair, on the basis of a promissory note, executed by the latter on 17-4-48. summons in the suit was personally served on the original defendant and the suit came up for first hearing on 22-6-60, inasmuch as the defendant did not appear nor was he represented by counsel on that dale, the court declared him ex parte and in turn, also passed an ex parte decree in favour of the plaintiff. the plaintiff filed i. a. 5/61 for transmitting the said decree for execution to.....
Judgment:
ORDER

C.A. Vaidialingam, J.

1. In this revision, Mr. V. Bhaskaran Nambiar, learned counsel for the plaintiff-petitioner, challenges the order of the learned Munsif rejecting R. I. A. 344/62.

2. The plaintiff instituted O. S. 285/60, Munsif's Court, Payyanur for recovery of amounts stated to be due from the sole defendant one Kelu Nair, on the basis of a promissory note, executed by the latter on 17-4-48. Summons in the suit was personally served on the original defendant and the suit came up for first hearing on 22-6-60, Inasmuch as the defendant did not appear nor was he represented by counsel on that dale, the Court declared him ex parte and in turn, also passed an ex parte decree in favour of the plaintiff. The plaintiff filed I. A. 5/61 for transmitting the said decree for execution to the Cannanore Munsif's Court. In that application he had impleaded, the legal representatives of the original defendant, on the ground that the original defendant died after the passing of the decree. The legal representatives entered appearance and filed objections to the claim of the plaintiff. They also urged that the original defendant Kelu Nair had died on 20-6-60, just two days prior to the passing of the ex parte decree in the suit, and therefore pointed out that the decree being a nullity there is no decree that could be executed by the plaintiff. Therefore no transfer of the decree for the purpose of execution is necessary at all. It is seen that the said application was dismissed on 12-7-62, accepting the contentions of the legal representatives.

3. Inasmuch as the heirs of Kelu Nair had filed a counter-affidavit in I A. 5/61 stating that the original defendant died before the passing of the decree, the plaintiff filed, on 24-1-61. 6 applications before the trial Court namely R. I. A. 342/62 to 346/62. R. I. A. 342/62 was an application to excuse the delay in seeking to set aside the abatement caused by the death of the original defendant, R. I. A. 343/62 was an application under Order 22, Rule 9, C. P. C. to set aside the abatement caused by the death of the original defendant. R. I. A. 344/62 which was treated by the learned Munsif, as the main application and the order in which is under attack, was under Section 161 of the Code, requesting the Court to restore the suit and dispose it of afresh, after bringing the legal representatives of the deceased defendant on record R. I. A. 346/62 was an application under Order 22 of the Code for bringing on record the legal representatives of the deceased defendant. The names of the legal representatives, were mentioned in the application R. I. A. 346/62, was again an application under Order 32. Rule 7 of the Code for appointing a guardian, for some of the legal representatives, who were minors. The maintainability of these applications, no doubt, appears to have been challenged bv the proposed legal representatives, who were sought to be brought on record. In particular, the order, that was passed by the lower Court, giving reasons for rejecting the claim made by the plaintiff is R. I. A. 344/62; and from the orders passed in all the other applications which are available before this Court in the records, it will be seen that in view of the dismissal of the main application, namely R. I. A. 344/62, all the other applications were dismissed on the same date. Therefore it is necessary to state what exactly was the request made by the plaintiff in R. I. A. 344/62. In this application the plaintiff had stated the circumstances under which the suit O. S. 285/60 was instituted and the defendant being ex parte and resulting in an ex parte decree being passed on 22-6-60. The plaintiff has also staled that he was not aware of the death of the defendant, on the date when the ex parte decree was passed, and he came to know about the same only when the heirs of the deceased filed a counter-affidavit in I. A. 5/61. Inasmuch as the plaintiff proceeds to state, that the defendant was dead on the date when the decree was passed, the decree is a nullity and therefore the decree cannot be executed. The petitioner, under those circumstances, made a request that the decree that has been passed against a dead person without his legal representatives being brought on record, has to be set aside, and the suit taken up for re-hearing, after bringing on record the legal representatives of the deceased defendant

4. The trial Court has, unfortunately, understood this application as a request to the Court to set aside the ex parte decree. The proper scope of that application does not appear to have been brought to the notice of the Court. But essentially, as I pointed out earlier, the plaintiff's request was to have a re-hearing of the suit, after the legal representatives of the deceased defendant, have been brought on record. This application was opposed by the legal representatives, on several grounds. They urged that, even according to the plaintiff, the decree being a nullity, no application can be filed in that suit, and they also urged that the remedy of the plaintiff if any, is to bring a fresh suit on the same cause of action, if she is otherwise entitled to. He also urged that if the application is allowed, the defendant's right to object to in any suit that may be instituted on the ground that it is barred by limitation will be taken away.

5. Before I consider the reasons given by the trial Court for rejecting this application, it will be seen, that along with this application, 4 other applications, referred to above have been filed namely for excusing the delay in seeking to set aside the abatement, for setting aside the abatement, for bringing or record the legal representatives, and for appointment of guardian for the minor legal representatives. 'But the point to be noted is that a substantial application, as contemplated, under the Code namely an application to set aside ad abatement caused by the death of the defendant, was before the Court. No doubt, those applications were opposed by the heirs of the deceased on the ground that the applications are not maintainable and that the petitioner's claim that he was not aware of the death of the defendant is also not true; and that in any event, the applications have been filed far beyond the period, provided by law.

6. The learned Munsif has treated R. I. A. 344/62 as the main application; and the trial Court's view is that Section 151 confers on the Court inherent powers to be exercised only when there arc no specific provisions relating to the same in the Code. The learned Munsif then refers to the provisions contained in Order 9, Rule 9 and Order 9, Rule 13 and is of the view that none of those special provisions, will enable the petitioner to maintain that application; because, the Court itself observes, that applications under Order 9. Rule 13 for selling aside an ex parte decree can be filed only by the defendant and not by the plaintiff as in tins case. Therefore the trial Court gives this as one of the reasons for holding against the maintainability of the application--namely that the application cannot be brought under Order 9, Rule 13 and Section 151 cannot also be invoked. The second reason given by the lower Court is that as the decree is accepted by the plaintiff to be a nullity, inasmuch as it has been passed against a dead person, the remedy, if any of the plaintiff, is only to bring a fresh suit against the legal representatives of the deceased, on the same cause of action. The lower Court lakes note of the fact that the claim on the promissory-note may be barred; but that circumstance will not enable the plaintiff to seek an indulgence under Section 151 of the Code. Therefore, on this basis, the trial Court rejected R. I. A. 344/62. Inasmuch as this main application was dismissed as not maintainable, and as the Court's view appears to be that unless the plaintiff is able to sustain an application under Order 9, Rule 18 his application will have to be dismissed, the further view of the lower Court also appears to be that when a suit has been decreed against a dead person and is as such a nullity, the plaintiff's remedy is to institute a fresh suit, on the same cause of action, against the legal representatives of the deceased defendant.

7. In view of the dismissal of this application, the lower Court rejected all the other 4 applications, including R. I. A. 343/62 which was specifically filed under Order 22, Rule 9, to set aside the abatement.

8. There is no controversy that the question as to whether the plaintiff was, at the time of passing of the decree, aware of the death of the defendant nor the further question as to whether the plaintiff has shown sufficient cause, for not filing within time the necessary applications to implead the legal representatives, and for setting aside the abatement of the suit, have not been enquired into or adjudicated upon by the trial Court, on merits. Those applications were summarily rejected, for the reasons, given in R. I. A. 344/62. I am particularly referring to this aspect because one of the contentions that has been urged by Mr. N.R.K. Nair, learned counsel for the respondent is that an adjudication by this Court in this revision, where the order in R. I. A. 344/62 alone is attacked, will not assist the petitioner even if he succeeds, inasmuch as the substantive applications have been also dismissed and those orders have been allowed to become final. I will refer to that aspect when I deal with the actual directions that are to be given by this Court.

9. Mr. V. Bhaskaran Namblar, learned counsel for the plaintiff-petitioner urged that the view of the trial Court that the application must be one under Order 9, Rule 13 and inasmuch as the petitioner's application cannot be one as contemplated under that provision, the R. I. A. 344/62 has to be rejected and that it is not maintainable either under Section 151 of the Code, is. erroneous. There is no question of the applicability of the provisions contained in Order 9 of the Code to dead person.

10. The further view of the learned Munsif that the plaintiff's remedy is to institute a fresh suit on the same cause of action as against the legal representatives is absolutely fallacious that is, overlooking the plain provisions of Order 22, Rule 9 of the Code which specifically provides that when a suit has abated or is dismissed under Order 22, no fresh suit on the same cause of action is maintainable. Along with R. T. A. 344/62 the petitioner has filed the 4 other applications as contemplated under the Code, and by not adjudicating on the merits on those applications, the trial Court has failed to exercise the jurisdiction vested in it by law. R. I. A. 344/62 is only an attempt made by the petitioner to point out to the Court a mistake that has happened in the proceedings namely of a decree being passed as against a dead man and requesting the Court to consider all the other applications filed by the petitioner and for a re-hearing of the suit on that basis. Such an application is perfectly maintainable and the Court has ample jurisdiction to pass suitable orders in the interests of justice especially when other substantive applications were also before the Court. The learned counsel for the petitioner has referred me to the relevant provisions contained in the Code as well us to certain derision bearing on this aspect..

11. Mr. N.R.K. Nair, learned counsel for the respondent urged that oven according to the petitioner the decree passed on 22-6-60 is a nullity; and if that is so, the position will he that the suit has abated, at any rate, on 20-11-60, the defendant having died on 20-6-60. If the petitioner was pursuing his remedies under the Code, an application like R. I. A. 344/62 invoking the jurisdiction of the Court under Section 151, C. P C was not maintainable. The lower Court was perfectly justified in coming to the conclusion that the petitioner cannot ask the Court to re-hear a suit in which a decree has been passed, by filing an application under Section 151 of the Code The learned counsel also referred me to the fact that there has been inordinate delay in the filing of the other applications by the petitioner especially when the fact that the defendant died on 20-6-60 has been brought to the notice of the plaintiff by his clients in the counter-affidavit filed in I. A. 5/61. The learned counsel, no doubt, found considerable difficulty in satisfying this Court that the two reasons given by the learned Munsif for rejecting R I. A. 344/62 arc sound. The learned counsel was faced with the provisions of Order 22, Rule 9 of the Code which is totally opposed to the reasoning of the trial Court that the plaintiff's remedy is to file a fresh suit against the legal representatives of the deceased, on the same cause of action The learned counsel also was at considerable pains to satisfy this Court about the soundness of the first part of the reasoning of the trial Court regarding Order 9, Rule 13 being made applicable to a plaintiff or a defendant, who was dead on the date the final decision was rendered by the Court. 1 will now refer to the material provisions in the Code

12. Order 9 of the Code deals with appearance of parties and the consequence of non-appearance. Rule 6 of this order gives jurisdiction to a Court, under the circumstances mentioned therein, for declaring a defendant ex parte. Rule 8 again provides for dismissal of a suit on default of appearance by a plaintiff. Rule 9 (1) specifically prohibits the bringing of a fresh suit by the plaintiff, on the same cause of action But Rule 9 (1) also enables the plaintiff by filing an application, within the period allowed in law, to have the order of dismissal set aside Sub-rule (3) makes the provisions of Section 5 of the Limitation Act 1908 applicable to the applications filed by the plaintiff under Sub-rule (1)

13. Similarly Rule 13 enables a defendant to file an application to have an ex parte decree set aside, and it is also seen that Sub-rule (2) makes the provisions of Section 5 of the Limitation Act applicable to those applications. A reading of Order 9. and in particular of Rules 8, 9 and 18 clearly show that those rules will apply only, to cases where such orders have been passed, as against either a plaintiff or a defendant, who was alive, on the date when the orders were passed. In fact, I will refer to a decision of the Privy Council holding that those provisions cannot apply to cases, where the party was dead on the date, when those orders were passed.

14. Order 22 of the Code deals with death, marriage and insolvency of parties. Rule 3 deals with the case of death of a sole plaintiff and provision is made for an application being filed, to bring on record, the legal representatives, in cases where the right to sue survives; and when such an application is filed and ordered the court has jurisdiction to proceed with the suit. But Sub-rule (2) states that when no application is filed, within time, the suit shall abate so far as the deceased plaintiff is concerned

15. Similarly, a provision is made regarding the death of a sole defendant. Rule 4 deals with the case of the death of one of several defendants or the sole defendant. It provides that an application shall be made, in the circumstances mentioned therein, to bring on record the legal representatives of the deceased defendant and when it is ordered the court is to proceed with the suit. Sub-rule (3) also states that where, within the time limited by law. no application is made under Sub-rule (1), the suit shall abate, as against the deceased defendant

16. The general provision relating to the effect of a suit abating, as well as the application to be filed for setting aside the abatement, is made in Rule 9 of Order 22. Sub-rule (1) categorically states that when a suit abates or is dismissed under Order 22, no fresh suit shall he brought on the same cause of action. Sub-rule (2) enables the party concerned, to file an application to have the abatement of the suit set aside and the circumstances under which that application can be allowed. Sub-rule (3) makes the provisions of Section 5 of the Limitation Act applicable to applications filed under Sub-rule (2). Therefore it will be seen that when a suit abates on the death of a plaintiff or on the death of a defendant, Order 22 Rule 9 (2) enables the party concerned to apply to court to have the order set aside and that application will have to he considered by the court on the merits. Section 151 of the Code, is the general provision saving of inherent powers of court; and that enables a court to make orders as will be necessary for the ends of justice or to prevent abuse of process of the court.

17. The reasoning of the trial court that the application, in order to be maintainable, must come under Order 9 Rule 13 will have to be tested in the light of the provisions contained in Order 9. as well as the provisions contained in Order 22 referred to above. Even at this stage, it may be mentioned, that the second reason given by the trial court that the petitioner's remedy is to institute a fresh suit, on the same cause of action as against the legal representatives of the deceased defendant cannot be sustained, because that reasoning is opposed to the mandatory provisions contained in Order 22 Rule 9 of the Code. I have already referred to that provision which slates that when a suit abates under Order 22. no fresh suit, on the same cause of action, is maintainable. But, unfortunately the lower court has also missed the other material provisions contained in Order 22 of the Code, particularly Order 22 Rule 9 (2) specifically enabling the plaintiff, to apply for selling aside the abatement caused by the death of the sole defendant. As to whether the plaintiff has been able to satisfy the court that he bad sufficient cause for not applying for setting aside the abatement within time, is a matter which does not arise in these proceedings, because that question has not been adjudicated upon by the lower court.

18. It is only necessary to refer to three Articles in the Limitation Act of 1908 which WHS in force, at the material lime. Article 176 provides the period of 90 days starting from the date of the death of deceased plaintiff or appellant for an application being filed, to bring on record the legal representatives of the deceased plaintiff or appellant. Article 177 similarly provides for the period of limitation for filing an application to bring on record the legal representatives of a deceased defendant. Therefore in this case it will be seen that inasmuch as the defendant died on 20-6-60, the petitioner should have filed an application to bring on record his legal representatives within 90 days from 20-6-60. Article 171 provides for an application to set aside an abatement under the Code and there also the party has got 60 days from the date of the abatement. Therefore in this case, it will be seen that the petitioner had time till 20-11-60, for filing an application to set aside the abatement. The abatement must have occurred on 20-9-60. In fact, the application filed for setting aside the abatement namely R. I. A. 343/62 is specifically under Order 22 Rule 9 (2) C. P. C. and 1 have already indicated that under Sub-rule (3) of Rule 9 of Order 22, the provisions of Section 5 of the Limitation Act are applicable. That is, even if the application is filed beyond the period of 150 days from the date of the death of a party, in this case 20-6-60, the petitioner can succeed in having the abatement set aside, if he is able to satisfy the court that he was prevented by sufficient cause, for not filing those applications within lime.

19. In this proceeding, the substantial question that arises for consideration is as to whether the view of the learned Munsif that the application filed by the petitioner under Section 161 of the Code was not maintainable, is correct or not.

20. I have already pointed out that out of the two reasons given by the lower court one of the reasons given by that court that the plaintiff's remedy is by filing a fresh suit on the same cause of action against the legal representatives, cannot certainly be accepted, as it is opposed to Order 22 Rule 9 of the Code. Therefore that need not detain me any further. Then the question is whether the view of the lower court that the petitioner's application to be held maintainable, must satisfy the provisions of Order 9 Rule 13 of the Code is correct or not. It is here that a slight confusion exists in the mind of the lower court. I have already stated that R. I. A. 344/62 was only a request made to the court to restore the suit, and. rehear the same, after bringing on record the legal representatives of the deceased defendant. The lower court has proceeded on the basis that it is merely an application that has been filed by the plaintiff to have the decree passed on 22-6-60, set aside straightway. If that is the only application that has been filed for getting, even the substantial reliefs contemplated under the Code, namely of having the abatement set aside, the position of the plaintiff may be considerably difficult. But in this he has filed the 4 other applications for the purposes mentioned above. Therefore the trial court's view that the maintainability of the application has to be tested by having regard to the provisions contained in Order 9 Rule 13 of the Code does not appeal to me Order 9 Rule 9 and Order 9 Rule 13, I have already remarked, can apply only to persons who are alive on the date when the effective orders were passed. Those provisions can have no application at all to cases where the parties were dead on the date when the orders were passed. In respect of such proceedings, the proper procedure to be adopted is as indicated in Order 22 C. P. C. By filing R. I. A. 344/ 62 under Section 151, C. P. C. along with the other applications for bringing on record etc. in my opinion, the plaintiff was perfectly justified in drawing the attention of the court to an illegality that has occurred, by a decree, being passed against a dead man without the knowledge of the court and without the knowledge of the plaintiff. The procedure adopted by the plaintiff for that purpose by filing an application under Section 151 of the Code namely R. I. A. 344/62, cannot certainly be considered to be irregular or that application to be not maintainable. As I will presently show, the court itself could have rectified the illegality by taking action under Section 151 of the Code. If so, there is nothing wrong in a party drawing the attention of the court to that illegality, and requesting that illegality to be set aside, by filing an application, under Section 151 of the Code.

21. That a decree obtained against a dead person or a decree passed in favour of a dead person is a nullity, is now well established, as Lord Watson observes at page 65, in the decision reported in Radha Prasad Singh v. Lal Sahab Rai (1891) ILR 13 All 53 (PC).

'An operative decree, obtained after the death of a defendant, by which the extent and quality of his liability, already declared in general terms, are for the first lime ascertained, cannot bind the representatives of the deceased unless they were made parties to the suit, in which it was pronounced.'

From the extract quoted above it will be seen that no effective decree, so as to bind the parties, can be made after the death of that party.

22. In Debi Baksh Singh v. Habib Saha, (1913) ILR 35 All. 331 (PC) their Lordships of the Privy Council had to consider the effect of a. decree that had been passed in favour of a plaintiff, who was dead, on the date, when the decree was passed. In that case, the plaintiff died on 21-0-1911 and the suit was dismissed for default for appearance of the said plaintiff, on 4-7-1911. On that date, neither the court nor the opposite side were aware of the circumstances that the plaintiff was already dead.

23. The legal representatives of the deceased plaintiff filed, on 3-8-1911, an application within lime, to bring them, under Order 22 Rules 3 and 9. on record and to continue the suit. The Deputy Commissioner entertained the application and set aside the order dated 4-7-1911 and allowed the suit to continue after bringing on record the legal representatives of the deceased plaintiff

24. On appeal the Judicial Commissioner reversed the order of the Deputy Commissioner. The former's view appears to be that the dismissal of the plaintiff's suit on 4-7-1911, though he was dead, on that date, is good in law and valid under Order 9 Rule 8 of the Code. The Judicial Commissioner also took the view that the application under Order 22 Rules 3 and 9 filed by the legal representatives of the deceased plaintiff, were not maintainable inasmuch as those provisions of the Code applied only when a suit is pending and not to a suit which has been already disposed of. That is, according to the Judicial Commissioner, on 4-7-1911 when once the order dismissing the suit for default has been passed, the suit has come to a termination and Order 22 Rule 8 does not apply at all. Lord Shaw, reversing the judgment of the Judicial Commissioner, and restoring the decision of the Deputy Commissioner, stales at page 335 of the reports.

'It requires no words of their Lordships to show the inapplicability of rules or orders dealing with the case of the non-appearance of a suitor, to the situation which arises when the suitor is dead. The principle of forfeiture of rights in consequence of a default in procedure, by a party to a cause is a principle of punishment in respect of such default, but the punishment of the dead, or the ranking of death under the category of default, docs not seem to be very statable.' From the extract quoted above it will be seen that according to their Lordships of the Judicial Committee, the rules quoted by the Judicial Commissioner can have no application to eases, where orders have been passed after a party is dead that is according to the Judicial Committee, those provisions can only apply if the party was alive on the date, when the orders were passed. The Judicial Committee further observes that the orders passed by the Judicial Commissioner, are vitiated by applying to a dead man, the orders and rules in the Code applicable to a defaulter. The Judicial Committee also is of the view that under those circumstances, the court has an inherent jurisdiction to rectify an illegality by taking action under Section 151 of the Code is clear by the following extract occurring at page 336:

'By the Code of Civil Procedure, Section 151, it is provided that 'nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice or to prevent abuse of the process of the Court.' In their Lordships' opinion such abuse has occurred by the course adopted in the Court of the Judicial Commissioner. Quite apart from Section 151, any Court might have rightly considered itself to possess an inherent power to rectify the mistake which had been inadvertently made. Rut Section 151 could never be invoked in a case clearer than the present, and their Lordships are at a loss to understand why, apart from points of procedure and otherwise, it was not taken advantage of.'

25. In fact, it will be seen that their Lordships regretted that Section 151 of the Code was not invoked and availed of by either court or the parties concerned. This decision, if I may say so with great respect, also establishes that the view of the trial court that the maintainability of the application in question, has to he judged by reference to Order 9 Rule 13 C. P. C. is erroneous. From this decision of the Privy Council, it is clear that Order 9 providing for dismissal for default and for applications being filed to set aside such orders and also selling the defendant ex parte and providing for applications to have those orders set aside, do not apply, when the party concerned was dead on the date when the orders were passed. It is also clear, that under those circumstances the provisions of Order 22 apply and the court has also inherent jurisdiction to rectify the mistake by invoking Section 151 of the Code.

26. Whether a second suit is maintainable by a legal representative of a person in whose favour a decree was passed, after his death, has come up for consideration in the decision reported in Goda Coopooramier v. Soondaramma, (1910) ILR 33 Mad 167 In that decision. Chief Justice Benson and Mr. Justice Sankaran Nair had to consider whether a subsequent suit filed by the legal representative of the deceased plaintiff was maintainable. In that case it is seen that a decree was passed by the court on 8-9-1891 in favour of 'A' But 'A' was dead on the morning of 8-9-1891. That decree was therefore absolutely a nullity Therefore 'B' his heir filed a second suit, on the same cause of action against the same defendant, on the ground that the previous decree being a nullitt, he is entitled to bring a fresh suit

27. Objection was taken that the second suit is not maintainable and the proper procedure to be adopted for the legal representatives for having the decree in the former suit reopened was by filing, in the same suit, applications under Order 22 Rule 9 of the Code This objection was sustained by the learned Judges of the Madras High Court in the decision referred to above. According the learned Judges the second suit is not maintainable; and after the abatement of a suit it is not open to his legal representatives to bring a fresh suit on the same cause of action. Reference is made to Order 22 Rule 9 of the Code and the learned Judges emphasised that the remedy as provided under the said provision, is to apply for an order to set aside the abatement, and the abatement is to be set aside if the party is able to make out a sufficient cause before the court. Therefore according to the learned Judges a second suit is not maintainable at all and relief must be obtained only in the earlier suit, by having recourse to Order 22 of the Code. This decision is an effective answer to the second reason given by the learned Munsif, namely that a second suit is the only remedy to be availed of by the plaintiff. As to what exactly is the legal position when a party dies is again discussed by a Division Bench of the Madras High Court consisting of Wallace and Walsh, JJ. in Bala-ramier v. Vasudevan, AIR 1929 Mad 802. In that decision it will be seen that the High Court allowed a C. R. P. on 6th December 1927, as against the respondent, who had died on 26-11-1927. Two applications were filed by the petitioner, in the C. R. P. on 2-2-1928, (a) one application being to bring on record the legal representatives of the deceased respondent: and (b) a second application under Section 151 of the Code to rehear the C. R. P. No doubt before the learned Judges, the petitioner in the C. R. P. appears to have taken up the position that the second application is not really necessary and that he is entitled to have the original decree to be allowed to stand, even after the first application is ordered. But the learned Judges do not accept this contention of the petitioner. The learned Judges are of the view that when a party dies, the legal action passes into a slate of suspense, which itself, if the legal representative is not brought on record within lime, passes into a slate of abatement. It is the further view of the court that while the action is in a stale of suspense, no valid act, which is not purely formal or processual, but which involves a decision on the merits of any part of the action, can be done. Ultimately the learned Judges set aside the order dated 6th December 1927 passed in the C. R. p. and directed the same to be reheard, after bringing on record the legal representatives of the deceased.

28. It is also to be seen from the decision reported in Darshanlal v. H.V. Tea Co. Ltd.. AIR 1958 Cal 691 and Happy Valley Tea Co. v. Darshan Lal, AIR 1962 All. 541 that the objection that no execution proceedings can be taken, because a decree is passed in favour of a dead plaintiff, can be raised even in execution proceedings also. Such an objection was raised successfully in the case before the Calcutta High Court, in the decision referred to above; and in the Allahabad decision, which also was connected with the same proceedings, the learned Judge has referred to the fact that though a decree may be a nullity nevertheless, the suit must he considered to be pending for certain purposes. A decision of the Allahabad High Court in Qutub Ali v. Dwarka Das 1904 All WN 44 is adverted to in the latter decision of the Allahabad High Court reported in AIR 1962 All. 541. In the earlier decision it is staled, on almost identical facts which exist before me, namely the decree being passed against a dead man, that the suit must be considered to be pending for certain purposes and can be reopened by applications being filed for that purpose. Therefore it will be seen from a review of the decisions referred to above that the provisions of Order 9 cannot be invoked and a party is entitled to file the necessary applications under Order 22 of the Code, and for that purpose a party may also file an application under Section 151 of the Code along with other substantive applications contemplated under Order 22 and other provisions of the Code.

29. Mr. N.R.K. Nair, learned counsel for the respondent pointed out that the application, under Section 151 as such, is not maintainable. I have already discussed this aspect in the earlier part of this judgment and this contention of the learned counsel cannot be accepted, especially when the petitioner has filed 4 other applications, namely R. I. A. Nos. 342. 343. 345 and 346/62 which are in conformity with the provisions of the Code. The merits arising for decision in those applications, have not been gone into by the lower court.

30. Mr. N.R.K. Nair relied upon the Division Bench Judgment of the Madras High Court reported in Seshamma v. Y.P. Venkata Rao. AIR 1924 Mad 713 in support of his contention, that when once the period of 150 days, has expired from the date of death of the party, the petitioner has no right to ask for selling aside the abatement and for rehearing of the suit. If such a decision is to be arrived at on investigation of facts, it is entirely different matter. But the learned counsel's contention is a legal one and the question is whether the decision referred to above supports this stand.

31. In AIR 1924 Mad 718 Odgers and Wallace. JJ. had to deal with the correctness of an order passed by a Subordinate Judge setting aside the order of the Munsif. The facts were briefly as follow: On the morning of 27-11-1918 the defendant died but on the same date a preliminary decree was passed as against that defendant in the suit. On 27-8-1920 the plaintiff filed an application under Order 34 Rule 5 of the Code for passing a final decree, to which application he had impleaded as legal representative, the widow of the deceased defendant Objection was taken that this application is not maintainable inasmuch as the preliminary decree passed is a nullity and the plaintiff has not taken any steps to set aside the abatement. Even after this objection, the plaintiff filed on 28-8-1921 another application wherein he merely requested that the delay in bringing on record, the legal representatives, may be excused and a final decree passed.' The trial court dismissed both these applications on the ground that the plaintiff has not filed the main application, contemplated under Order 22 Rule 9 seeking to set aside the abatement. But on appeal, the Subordinate Judge set aside the order of the trial court as be was of the view that the implication filed on 27-8-1920 under Order 34 Rule 5 for passing a final decree, can be construed as containing an implied request, to set aside the abatement.

32. The learned Judges of the Madras High Court do not accept the reasoning of learned Subordinate Judge; and after selling aside that order restored the order of dismissal passed by the trial court The learned Judges specifically refer to the fact that the preliminary decree passed on 27-11-1918 is void and the suit abates on 26-5-1919 as per the provisions of the Limitation Act then in force. The High Court also adverts to the fact that the plaintiff has never asked for the abatement being set aside: and in this view the learned Judges categorically held that the plaintiff's application filed on 27-8-1920 cannot be considered to be one under Order 22 Rule 9 of the Code. The learned Judges also emphasised that there was not before the trial court or the appellate court, any prayer under Order 22 Rule 9. to set aside the abatement; and in consequence, they also hold that the appellate court had net jurisdiction to set aside the abatement.

33. From what is stated above, it will he clearly seen that the said decision does not go to the extent of laying down any proposition of law, as contended by the learned counsel for the respondent, that no application, for setting aside the abatement can he filed, even if a sufficient cause is made out. after the period of 150 days provided for under Arts. 171 and 177 of the Limitation Act of 1908. On the other hand, the Madras High Court is of the view that the proper relief to be asked for, is by filing an application under Order 22 Rule 9: and that as the plaintiff has not made that request in that case, in either of the applications filed by him on 27-8-1920 and 23-3-1921. Therefore that decision does not support the extreme stand taken before me by the learned counsel for the respondent. Ultimately the position before me is that the order of the learned Munsif cannot be sustained for any of the reasons given by him

34. Then the question arises as to what exactly is the relief that is to be granted to the petitioner. According to Mr. V. Bhaskaran Nambiar, learned counsel for the petitioner the other applications R. I. A. Nos 342, 343, 345 and 346/62 have not been considered on merits. On the other hand, following the reasons given in R. I. A 344/62 which has been treated as the main application, the trial court has summarily rejected all the other applications. The counsel pointed out that the question as to whether his client is able to make out a sufficient cause before the court for not filing the applications in time, does not now arise as no opportunity was given to him and such an opportunity, in order, to meet the ends of justice, will have to be afforded to his client. If the lower court has considered those applications on merits, and come to a conclusion on facts against his client, the position may be different. But so long as that has not been done, the counsel presses for the exercise by this Court, suo motu its jurisdiction under Section 115 of the Code, by setting aside the orders passed by the lower court dismissing those applications also.

35. No doubt this request is contested by the learned counsel for the respondent. Mr. N.R.K. Nair pointed out that if the petitioner was aggrieved by the dismissal of those applications nothing prevented the petitioner from challenging those orders, by adopting the appropriate remedy available to him. In particular, so far as the order of dismissal passed in R. I. A. 343/62 is concerned, the petitioner is entitled to file an appeal before the appellate court, which is not this Court, under Order 43 Rule 1 (k) of the Code. Therefore this court should not show any indulgence to the petitioner, especially when he has not been vigilant in challenging those orders.

36. No doubt, the application is filed by the petitioner far beyond the period provided by the Statute. Normally, this court will be reluctant to interfere with orders passed by the subordinate courts, if the party himself does not seek to have them set aside. No doubt there is also the circumstance that the order dismissing R. I. A. 343/62 can be appealed against as pointed out by Mr. N.R.K. Nair. But having due regard to those circumstances, in my opinion, this Court should not, in the interest of justice, miss the essential point namely that the reasons given by the lower Court for dismissing R. I. A. 344/62 are absolutely erroneous and there has been no opportunity given to the petitioner to have his claim arising for decision in the other 4 applications, adjudicated upon on merits. It is not as if that there has been any independent consideration on merits of the other 4 applications; because I have already poinlcd out that they have been dismissed on the short ground that R. I. A. 344/62 is dismissed. Therefore the reasons given for dismissing R. I. A. 344/62 must be taken to be the reasons given by the lower Court for dismissing those 4 applications also. If once the reasons given in R. I. A 344/62 are not accepted, the petitioner must be given an opportunity of having his claim considered independently in the other four, applications also The fact that an appeal as against an order in R. I. A. 343/62 is provided for under Order 43. Rule 1(k) which appeal is not to this Court but to a subordinate Court, is not a bar to this Court exercising jurisdiction under Section 115 of the Code. It cannot be disputed that, even as against the appellate order that may be passed by the subordinate Court, the petitioner or the party aggrieved, cannot come up to this Court by way of any further appeal. If that is so, in my opinion, the principles laid down by the Supreme Court in S.S. Khanna v. F.J. Dillon, AIR 1964 SC 497 apply. In that decision the Supreme Court has held that where a decision, by itself is not appealable to the High Court, directly or indirectly, the High Court is competent to exercise its revisional jurisdiction under Section 115 of the Code.

37. That under appropriate circumstances this Court can suo motu exercise its jurisdiction of revisional powers and consider the correctness or otherwise of an order passed by a subordinate Court, has been discussed and laid down by me in the decision reported in Ramunni v. Govindan, 1LR (1957) Ker 920: (AIR 1959 Kerala 329). I also find that my learned brother Mr. Justice T.C. Raghavan has taken the same view in the decision reported in Kesavan v. Abraham. 1982 Ker LT 117.

38. Having due regard to these principles, by exercising my revisional jurisdiction sue motu under Section 115 of the Code, the orders dated 18th June 1964, and passed in R. I. A. Nos. 342 to 346/62 will stand set aside and the trial Court will take up all these applications over again for fresh consideration on merits. It is needless to state that R. I. A. 344/62 is maintainable and it is closely connected with the other prayers made in the 4 applications referred to above. The granting of relief to the petitioner ultimately will depend upon, the decision rendered by the lower Court one way or other on the merits arising in all these R. I. As. for consideration. The C. R. P. is allowed and this application is remanded to the trial Court for reconsideration along with R.I.A. Nos. 342, 343, 345 and 346 of 1962. Costs of this C. R. P. will abide and be provided for in the final orders to be passed by the trial Court.


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