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Hazarat Kibulai Sayyed Gulam Gouse Sha Sahib Kadiri Vs. Dost Mohammad Khan Sahib (Dead) and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported in85Ind.Cas.666; (1924)47MLJ745
AppellantHazarat Kibulai Sayyed Gulam Gouse Sha Sahib Kadiri
RespondentDost Mohammad Khan Sahib (Dead) and anr.
Cases ReferredParameswaran Munpee v. Narayanan Nambudiri
Excerpt:
- .....(1916)31mlj279 , which we have decided to follow (vide the judgment of sadasiva aiyar, j., at pages 239-240). the present application does not come within the scope of order 22, rule 3 : (1916)31mlj279 , civil procedure code, which deals only with applications made by legal representatives of deceased plaintiffs. rule 3 ilr (1915) all 296 deals only with the result of such applications not being made i within the time limited by law on the interest of the deceased plaintiff.4. this application is dismissed with costs.5. the regular appeal will be posted for hearing in due course.
Judgment:
ORDER

1. Parameswaran Munpee v. Narayanan Nabudiri : (1916)31MLJ279 is a direct authority for the view that a suit once instituted by two or more plaintiffs duly authorised under Section 92, Civil Procedure Code, does not abate in consequence of one of the plaintiffs dying during the continuance of the suit.

2. It seems to us that the case of one of two or more appellants dying after the filing of an appeal against a decree in a suit of the nature referred to in Section 92 is an a fortiori case of abatement not resulting from the death of a party.

3. The observations in Chhabile Ram v. Durga Prasad ILR (1915) All 296 to the effect that it is necessary that there should be two persons interested in the trust and holding the Advocate-General's sanction for carrying on the litigation have not been accepted by the Bench which decided the case in Parameswaran Munpee v. Narayanan Nambudiri : (1916)31MLJ279 and in view of the strict interpretation which has been put upon the expression ' instituted ' by Sir Lawrence Jenkins in Darves Haji Muhamad v. Jainudin ILR (1906) B 603, we do not think that they should be followed. Alagappa v. Muthiah ILR (1917) M 237 33 MLJ 173 is an additional authority for the correctness of the view taken by this Court in Parameswaran Munpee v. Narayanan Nambudiri : (1916)31MLJ279 , which we have decided to follow (vide the judgment of Sadasiva Aiyar, J., at pages 239-240). The present application does not come within the scope of Order 22, Rule 3 : (1916)31MLJ279 , Civil Procedure Code, which deals only with applications made by legal representatives of deceased plaintiffs. Rule 3 ILR (1915) All 296 deals only with the result of such applications not being made i within the time limited by law on the interest of the deceased plaintiff.

4. This application is dismissed with costs.

5. The regular appeal will be posted for hearing in due course.


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