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Appaji Reddiar Vs. Thailammal - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1933Mad417; (1933)64MLJ493
AppellantAppaji Reddiar
RespondentThailammal
Cases Referred and Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd.
Excerpt:
- - i am clearly of the opinion that the cases quoted on behalf of the respondent here, namely, kyroon bee v......that order which was one ordering the respondent in this appeal to be brought on the record as the legal representative of the deceased original appellant is an appealable order or not. in my view, it is not. applying the test applied by sir arnold white, c.j., in tuljaram row v. alagappa chettiar (1910) mad. 1 : 21 m.l.j. 1 this is certainly not an appealable order. that test has so often been referred to and i do not propose to re-state it here. i may however summarise my reason's for saying that this is an order which is not appealable. an order to be appealable must of course be a judgment within the meaning of clause 15 of the letters patent. in my view, this is not a judgment which finally settles the rights of parties but has the effect of allowing litigation which is proceeding.....
Judgment:

Horace Owen Compton Beasley, Kt., C.J.

1. This is a Letters Patent Appeal from an order of Jackson, J. The question raised here is whether that order which was one ordering the respondent in this appeal to be brought on the record as the legal representative of the deceased original appellant is an appealable order or not. In my view, it is not. Applying the test applied by Sir Arnold White, C.J., in Tuljaram Row v. Alagappa Chettiar (1910) Mad. 1 : 21 M.L.J. 1 this is certainly not an appealable order. That test has so often been referred to and I do not propose to re-state it here. I may however summarise my reason's for saying that this is an order which is not appealable. An order to be appealable must of course be a judgment within the meaning of Clause 15 of the Letters Patent. In my view, this is not a judgment which finally settles the rights of parties but has the effect of allowing litigation which is proceeding further to proceed to a final adjudication. The facts of the case here are that the deceased original appellant filed this appeal and whilst it was pending died. Then an application was made to bring on record the respondent as her legal representative. The question as to whether or not the respondent was the legal representative of the deceased original appellant depended upon the genuineness or otherwise of a will. That was a matter which came before our learned brother. He first of all considered whether the will was a genuine one or not and having found that it was genuine he brought upon the record the respondent, the person who by the will was established to be the legal representative of the deceased original appellant. What was the effect of the order? Upon the death of the original appellant the appeal would have abated if within the period allowed for doing so no legal representative of the deceased appellant had been brought on the record. The result would have been that if no application had been made the appeal would have abated and the judgment of the Lower Court would have stood in favour of the appellant here. The effect of the order made by our learned brother is that the final adjudication upon this matter is not stopped by the death of the deceased original appellant. On the contrary the order makes it possible for an adjudication upon the matter under the appeal. I am clearly of the opinion that the cases quoted on behalf of the respondent here, namely, Kyroon Bee v. The Administrator-General of Madras (1915) 2 L.W. 948 and Sarat Chandra Sarkar v. Maihar Stone and Lime Co. Ltd. (1921) I.L.R. 49 Cal. 62 are of no application here at all. Those cases dealt with the position of suits which had already abated and the question was whether an order setting aside the abatement was an order which was appealable or not. The reason for deciding that the order was appealable was because by reason of. the abatement of the appeal the respondent had acquired a valuable right and that the order setting aside the abatement had the effect of depriving the respondent of that valuable right. Hence it was held that there should be an appeal from such an order. That is not this case at all. For the reasons I have given, in my view, the preliminary objection taken by Mr. K. Bhashyam is a sound one and I must hold that there is no appeal from such an order as in this. case.

2. This Letters Patent Appeal must, therefore, be dismissed with costs.

Bardswell, J.

3. I agree.


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