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Kasibhotla Venkata Seshamma Vs. Kalaga Gunneswara Rao, Minor by Guardian Devarakonda Surayya - Court Judgment

LegalCrystal Citation
SubjectCivil;Family
CourtChennai
Decided On
Reported in79Ind.Cas.860; (1924)46MLJ129
AppellantKasibhotla Venkata Seshamma
RespondentKalaga Gunneswara Rao, Minor by Guardian Devarakonda Surayya
Cases ReferredIn Lakshmi Achi v. Subbarama Iyer
Excerpt:
- - 6. the appeals fail and are dismissed with costs......subordinate judge dismissing the application to be brought on record as the deceased plaintiff's legal representative. the appellant and others filed separate petitions to be brought on record and the subordinate judge directed that the person claiming to be the adopted son of the deceased be brought on record. the appellant's application was dismissed as out of time. it is admitted that the suits have been withdrawn by the adopted son with- leave to file fresh suits. a preliminary objection is taken that no appeals lie from the orders.2. we think that the contention should be upheld. order 43 rule 1 (k) of the code of civil procedure provides for appeals against an order under rule 9 of order 22 refusing to set aside the abatement or dismissal of a suit. in the present case there has.....
Judgment:

1. These appeals arise out of the order of the Subordinate Judge dismissing the application to be brought on record as the deceased plaintiff's legal representative. The appellant and others filed separate petitions to be brought on record and the Subordinate Judge directed that the person claiming to be the adopted son of the deceased be brought on record. The appellant's application was dismissed as out of time. It is admitted that the suits have been withdrawn by the adopted son with- leave to file fresh suits. A preliminary objection is taken that no appeals lie from the orders.

2. We think that the contention should be upheld. Order 43 Rule 1 (k) of the Code of Civil Procedure provides for appeals against an order under Rule 9 of Order 22 refusing to set aside the abatement or dismissal of a suit. In the present case there has been no abatement. The application of one of several persons who applied to be brought on record as the legal representative was granted and it is difficult to see how there can be any abatement.

3. None of the cases cited by the appellant's vakils has any application, Ayya Mudali Velan v. Veerayyi 39 MLJ 218 was a case where it. was held that the cause of action did not survive to the appellant. It was not a case of contest between real claimants and one of them succeeding. Rama Rao v. The Rajah of Pittapur 36 MLJ 169 was a case where a defendant was struck out as an unnecessary party and the suit dismissed as against him. Where a legal representative is brought on record there is no abatement within the meaning of order 43 Rule 1 (k) nor is there any decree within the definition of Section 2 Clause 2.

4. In Lakshmi Achi v. Subbarama Iyer 28 MLJ 491 it was held that no appeal lies from an order refusing to bring on record a person as legal representative on an application under Order 22 Rule 3 and we think the present case is covered by the decision.

5. We think the subordinate Judge was wrong in having expressed any opinion on the genuineness of the will under which the petitioner claims. As he held that the petitioner was out of time and that the delay was not satisfactorily explained it was unnecessary to go into the merits of the claim. We express no opinion as to the genuineness or validity of the will or as to the appellant's rights there under.

6. The appeals fail and are dismissed with costs.


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