Skip to content


thelapurath Kalyanikutty Amma Vs. M.K. Ravunni Nair and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKerala High Court
Decided On
Case NumberSecond Appeal No. 1263 of 1960
Judge
Reported inAIR1965Ker303
ActsCode of Civil Procedure (CPC) , 1908 - Sections 2(2), 96, 104, 105 - Order 1, Rule 8 and Order 22, Rule 3; Limitation Act, 1908 - Schedule - Article 181
Appellantthelapurath Kalyanikutty Amma
RespondentM.K. Ravunni Nair and ors.
Advocates: C. Achutha Menon and; K.P. Madhava Menon, Advs.
DispositionAppeal dismissed
Cases ReferredShakuntala Devi v. Kashmir Chand
Excerpt:
- - considered, that the plaintiff's claim had been effectively disposed of, as if the suit had been dismissed......have abated by judgment dated the 27th june 1959. ravunni nair appealed against the judgment tothe district judge. holding the appeal to be competent, he allowed the first respondent to prosecutethe suit in second appeal by the first defendant, it was contended that the declaration that the suit had abated did not amount to a decree and could not have been appealed against before the district judge. 2. there is almost complete unanimity of judicial opinion, that a decision that the suit has abated is tantamount to a decree, for the purpose of appeal. the earliest case brought to my notice is bhikaji bamchandra v. purshotam, ilr 10 bom 220 decidedunder section 368 of the civil procedure code of 1882, where it was held, that an order or judgment that a suit do abate 'is virtually a decree.....
Judgment:

S. Velu Pillai, J.

1. Raghavan Nair, the original plaintiff, sued for declaration of title in respect of the suitproperty and of a right of way to the temple situated on it. After the suit was commenced, he made an application under Order 1, Rule 8, C. P. C. to sue in a representative capacity on behalf of his tarwad; this was granted. He died on the 18th September, 1958.Ravunni Nair, the first respondent, who is a member of the same tarwad applied more than three months alter the above date, but within three years of it, for permission to continue the salt as the legal representative of the original plaintiff. His application was dismissed on the 24th June, 1959, and the suit was held to have abated by judgment dated the 27th June 1959. Ravunni Nair appealed against the judgment tothe District Judge. Holding the appeal to be competent, he allowed the first respondent to prosecutethe suit in second appeal by the first defendant, it was contended that the declaration that the suit had abated did not amount to a decree and could not have been appealed against before the District Judge.

2. There is almost complete unanimity of judicial opinion, that a decision that the suit has abated is tantamount to a decree, for the purpose of appeal. The earliest case brought to my notice is Bhikaji Bamchandra v. Purshotam, ILR 10 Bom 220 decidedunder Section 368 of the Civil Procedure Code of 1882, where it was held, that an order or judgment that a suit do abate 'Is virtually a decree as it disposes ofthe plaintiff's claim as completely as if the suit had been dismissed.'

3. This view was accepted by the Madras HighCourt in the Subrarnania Iyer v. Venkataramier, AIR 1916 Mad 1088 by Division Bench. In a later case of that Court, Suppu Nayakan v. Perumal Chetty, AIR 1917 Mad 285, although the point did not directly arise, because the legal representative of the defendant who died was impleaded, the Bench held that the order declaring the suit to have abated is a decree, as it determines the rights of the plaintiff withrespect to the subject-matter of the suit and is appealable as such, not being excluded from the definition of a decree and not being appealable as an order. For example, an order of dismissal of a suit would have been a decree, but for its being specifically excluded from the definition of a decree in Section 2 (2), Civil Procedure Code. In the same case Moore, J. considered, that the plaintiff's claim had been effectively disposed of, as if the suit had been dismissed. This view was followed in Gopalaratnam v. Lakshmikantam, AIR 1943 Mad 589. In Venkatakrishna Reddi v. Krishna Reddi, AIR 1926 Mad 588 (FB) decided by a full Bench of the Madras High Court, this question was left open, the point actually decided being, that no appeal lay against an adjudication under Order 22,Rule 5. The only decision to which my attention was invited, which has struck a discordant note, is Shakuntala Devi v. Kashmir Chand, A I R 1961 Punj 184 but even here, the view that the declaration of abatement is a decree was not doubted, the appeal against such declaration in the particular case, being held to be incompetent, as the application to prosecute the suit had been dismissed and no appeal had been preferred against such dismissal; this however is a different point. So in view of the decisions referred to above, I hold that the judgment of the Munsiff dated the 27th June, 1959, was a decree and was appealable.

3a. It is true that the first respondent was not allowed to be impleaded or to prosecute the suit, but that, in my opinion, ought not to be a formidable obstacle to an appeal being preferred by him against the decree, on his showing in such appeal, that the order refusing to implead him is incorrect. The position cannot admit of any doubt, that if a plaintiff dies after the decree is passed, his legal representative can prefer the appeal; of course there is a distinction that he is a party to the decree. Where, as in this case, the application to implead is dismissed and a decree is passed as a logical consequence, there is not much violence in holding, that he may appeal against the decree challenging the propriety of the interlocutory order. It was not contended, that the order refusing to implead the first respondent was appealable as an order. I am therefore of the view that the District Judge was right in entertaining the appeal.

4. On the merits, the Judge has adverted to the fact, which perhaps was overlooked by the Munsiff, that the suit was prosecuted in a representative capacity. It was not disputed, that the first respondent is one o the members of the tarwad which Raghavan Nair sought to represent. Strictly speaking, there was no abatement of the suit upon his death. The first respondent made the application for being allowed to prosecute the suit within the period limited by Article 181 of the Indian Limitation Act and it was rightly granted by the District Judge.

5. For the above reasons, the judgment of the District Judge is confirmed. The first respondent has not appeared to contest this appeal and so I do not order costs in this Court. As for respondents 2 and 4 their counsel Shri. T.L. Viswanatha Iyer submitted, that he has ceased to appear for them as they have assigned their interests. The second appeal is dismissed without costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //