1. The facts out of which this Second Appeal arises are as follows :--The appellants who are landlords brought three suits, O.S. Nos. 271, 272 and 275 of 1909 against various tenants for ejectment. They originally filed the suits in the District Munsif's Court, but the High Court finally held that the suits were not filed in the proper Court which was the Revenue Court and directed the plaints to be returned for presentation to the proper Court. There was an appeal to the Privy Council, Appeal No. 55 of 1916, in which the three cases were consolidated into one appeal. The decision of the Privy Council is reported in Suryanarayana v. Patanna ILR (1918) M 1012 : 1918 36 MLJ 585. We are not concerned in the present proceedings with the reasons of the Privy Council nor with their ruling itself. It would seem that pending the hearing of the Privy Council appeal, one Seshayya, defendant in O.S. No. 272 of 1909 died, and no legal representative was brought on record and the decision of the Privy Council was given without anybody representing Seshayya's interests on record before them. It is now argued by his legal representative, Venkataswami, who is the respondent before us, that this decision so far as his case is concerned, is a nullity as nobody represented his interests and as it was given against a dead man. The District Judge has given effect to this contention and disallowed execution against Venkataswami, Seshayya's legal representative.
2. On appeal it is brought to our notice that the case is exactly covered by the ruling of this High Court in Kalyani Pillai v. Thiruvenkadaswami Aiyangar ILR (1924) M 618 : 47 MLJ 154 which followed the ruling of the Patna High Court in Deonandan Prasad Singh v. Janki Singh (1920) 5 Pat. LJ 314. These two decisions are based upon 3 and 4 William IV. c. 41, Section 23. That section seems to be fairly clear that even though a party before the Privy Council might have died pending the appeal the order made by the Privy Council in the case nevertheless has full force and effect and is to be carried out by the Courts in India. It is enacted:
That in any case where any order shall have been made on any such appeal as last aforesaid, the same shall have full force and effect notwithstanding the death of any of the parties interested therein.
3. The second part of that section is not relevant here. It is ingeniously suggested by the learned vakil for the respondent that there is some misapprehension as to the meaning of this section by both the Madras High Court and the Patna High Court and that Section 23 should be read with Section 21 which talks about 'Order and Decree' and he contends that Section 23 will not apply in the case of a decree as that section talks only about an 'Order'. I am unable to follow this argument. What we are carrying out here is the order of the Privy Council. The wording is:
His Majesty having taken the said report into consideration was pleased by and with the advice of his Privy Council to approve thereof and to order as it is hereby ordered that the same be punctually observed, obeyed and carried into execution.
Whereof the Judges of the High Court of Judicature at Madras for the time being and all other persons whom it may concern are to take notice and govern themselves accordingly.
4. The order has full force in spite of the fact that when that order was made, one of the parties affected by that order was not alive and we are bound to carry out that order. It follows then that the fact that Seshayya was dead at the time of the hearing of the Privy Council Appeal is of no importance.
5. Furthermore, it must be remembered that the Privy Council consolidated the three cases into one appeal and heard a joint argument as regards all the cases. It was after hearing an argument like that that they decided the cases. The ruling in Gopalacharyulu v. Subbamma ILR (1919) M 487 : 38 MLJ 493 is that where a decision is given in a suit instituted and conducted bona fide by some only of a number of persons similarly interested in the matter, it is res judicata against the representative of any defendant who had died pending the appeal but whose legal representative was not brought on record in the appeal or second appeal. No doubt that case dealt with the binding character of the decision on the persons who were the legal representatives of the deceased person and who were not brought on record and not exactly with the executability of the decree in the case. But the two are very analogous to each other. Gopalacharyulu v. Subbamma ILR (1919) M 487 : 38 MLJ 493 could therefore also be relied on for the position that this decree could be executed against Venkatasami in spite of the fact that the person whose legal representative he is was not on record at the time of the hearing of the Privy Council Appeal.
6. C.M.S.A. No. 31 of 1924 must therefore be allowed and the order of the first Court restored.
7. C. M. S. A. No. 32 of 1924 follows.
8. C. M. S. A. Nos. 53 of 1924 and 32 of 1925 fail on the view we have taken and must be dismissed.
9. As regards costs, there will be costs for the appellants in C. M. S. A. No. 31 of 1924 and for the respondent in C. M. S. A. No. 53 of 1924. There will be no costs in the other two cases.
10. I agree and I only wish to say one word as regards the first point raised by Mr. Varadachari as I was a party to the decision in Kalyani Pillai v. Thiruvenkadaswami Aiyangar : AIR1924Mad695 . Nothing has been shown or said here to lead me to take a different view to that which I adopted in conjunction with Phillips, J., in that case, fortified as we were by the decision in Dconandan Prasad v. Janki Singh (1920) 5 Pat. LJ 314. The attempt to distinguish it on the ground of difference in language in Sections 21 and 23 cannot, I think, be supported for a moment. There is nothing in the rest of the statute, as far as I know, that would lead one to the inference that the word 'any order or decree' means anything different or is intended to have any different effect from the expression 'any order' used in Section 23.
11. I agree with the order as to costs.