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Thadikonda Gopalaratnam Vs. Thadikonda Lakshmikantam and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtChennai
Decided On
Reported inAIR1943Mad569; (1943)2MLJ17
AppellantThadikonda Gopalaratnam
RespondentThadikonda Lakshmikantam and anr.
Cases ReferredSuppan Nayakan v. Perumal Chetty
Excerpt:
- - perumal chetty (1916)30mlj486 .in that case it was quite clearly laid down that an order of dismissal should be passed after the abatement of a suit under order 22, rule 3, and that an appeal from this order would lie......judge who will thereupon proceed to allow his appeal. it is, however, plain that either an appeal or a revision petition lies. both in the circumstances of this case cannot be competent. the difficulty which the learned advocate for the petitioner says that he feels about the competence of the appeal is this : he points out that under the present civil procedure code, order 22, rule 3(2) provides that where no application had been made within the time limited by law the suit shall abate so far as the deceased plaintiff is concerned and that the high courts of allahabad, lahore and bombay have held that this means that the suit automatically abates and that no order is required declaring that an abatement has in fact taken place. as therefore in the circumstances of the present,.....
Judgment:

Happell, J.

1. The petitioner was the second defendant in a suit brought for; a: declaration of title in respect of certain properties and a direction that the defendants should execute a deed of conveyance in favour of the plaintiff. The second defendant (the present petitioner) was the brother of the first defendant and the plaintiff was their sister. She filed the suit on 2nd December, 1941, on the footing that the previous sale of the property to the defendants was nominal and that the norminal character of the sale had been recognised in agreements executed between herself and her brothers. As already stated the suit was instituted on 2nd December, 1941 but on 24th December, 1941, the plaintiff died. On 4th December, 1941, she had executed a will in favour of the second defendant and he consequently filed two applications; one on 16th February, 1942, and the other on 20th March, 1942, the first to be brought on record as the legal representative of the plaintiff and the second for transposing him as, plaintiff under Order 1, Rule 10. Both these applications were dismissed by the learned District Munsiff of Bapatla and following on the dismissul of the applications the suit itself was dismissed on-3rd April, 1942, on the ground that it had abated. Thereafter the second defendant filed an appeal against the decree dismissing the suit in the Court of the Subordinate Judge of Bapatla but at the same time he had filed these two revision petitions against the orders on his two application

2. He says that he has done this out of abundant caution because the law is not clear in regard to whether an appeal against an order dismissing the suit as having abated lies. It has, however, to be noted that the petitioner is not really filing an appeal in the Court of the Subordinate Judge of Bapatla, and, in the alternative, a revision petition here. He seems to expect that, if the petition is held to be competent and an order passed on it in his favour, that order will govern the learned Subordinate Judge who will thereupon proceed to allow his appeal. It is, however, plain that either an appeal or a revision petition lies. Both in the circumstances of this case cannot be competent. The difficulty which the learned advocate for the petitioner says that he feels about the competence of the appeal is this : He points out that under the present Civil Procedure Code, Order 22, Rule 3(2) provides that where no application had been made within the time limited by law the suit shall abate so far as the deceased plaintiff is concerned and that the High Courts of Allahabad, Lahore and Bombay have held that this means that the suit automatically abates and that no order is required declaring that an abatement has in fact taken place. As therefore in the circumstances of the present, case the petitioner could not apply to have the abatement set aside, since the Court has refused his applications to be brought on record, his only remedy, in the view taken by the Allahabad, Lahore and Bombay High Courts, would be to file revision petitions against the orders passed on his applications. My attention has also been directed to the decision of a Full Bench of this Court in Venkatakrishna Reddi v. Krishna Reddiar (1985) 50 M.L.J. 485 : I.L.R. Mad. 450 in which, while holding that no appeal lay against an order refusing the application of a person to be brought on the record as the legal representative of a deceased plaintiff, it was stated that the Bench gave no expression of opinion as to what would be the consequence if the petitioner appealed against the actual order of abatement or dismissal. It is suggested that the petitioner cannot be certain that he has a right of appeal in view of the decisions of other High Courts in the matter and the fact that in Madras the question was left open by the Full Bench in Venkatakrishna Reddi v. Krishna Reddiar (1985) 50 M.L.J. 485 : I.L.R. Mad. 450

3. For the respondent, however, it is contended that the learned Judges in the Full Bench case were doing no more than stating that the question whether an appeal lay against the actual order of abatement or dismissal was not one which they had to decide, but that, whatever may have been the case with the Full Bench, I am bound by the decision of a Bench of this Court in Suppan Nayakan v. Perumal Chetty : (1916)30MLJ486 . In that case it was quite clearly laid down that an order of dismissal should be passed after the abatement of a suit under Order 22, Rule 3, and that an appeal from this order would lie. Earned Counsel for the petitioner argues that the correctness of this decision was doubted in Ayya Mudali Velan v. Veerayee (1920) 39 M.L.J. 318 : I.L.R. Mad. 812. It does perhaps appear from the judgments of Oldfield and Seshagiri Aiyar, JJ., who delivered separate but concurring judgments in that case, that they would not have been prepared to concur with everything that was said in Suppan Nayakan v. Perumal Chetty : (1916)30MLJ486 . The question in Ayya Mudali Velan v. Veerayee (1920) 39 M.L.J. 318 : I.L.R. Mad. 813 however was whether an appeal lay from an order rejecting the claim of a person to be the legal representative of a deceased plaintiff and not whether there was a right of appeal against an order of dismissal as the suit had abated. It cannot therefore be said, as far as I am concerned, that the observations in Ayya Mudali Velan v. Veerayee (1920) 39 M.L.J. 318 : I.L.R. Mad. 813 with regard to Suppan Nayakan v. Perumal Chetty : (1916)30MLJ486 have weakened the force of its authority. I am bound by the decision in Suppan Nayakan v. Perumal Chetty : (1916)30MLJ486 and, according to that decision, an appeal by the present petitioner lies to the Subordinate Judge of Bapatla. That being so, a civil revision petition does not lie since the petitioner can obtain his remedy by way of appeal.

4. These petitions must therefore be dismissed with the costs of the respondent in Civil Revision Petition No. 1132. The respondent in Civil Revision Petition No. 1133 has not been represented.


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