1. The respondent in both the petitions was the second defendant in O.S. No. 575 of 1942 which was filed by his mother, Viradambal. He had a brother Chenna Pillai who died in 1939. Chenna Pillai, the respondent and their half brother Govinda Pillai, the first defendant, had partitioned their properties during the life-time of their father. The case of the respondent's mother was that Chenna Pillai was solely entitled to the suit property as it had fallen to his share at the partition and that after his death she had the right to enjoy it as he died a bachelor. It was also her case that the respondent (second defendant), the first defendant and his son, the third defendant, and defendants 4 and 5, sons of the respondent trespassed upon the suit property and alienated portions of it to defendants 6 to 8 without her knowledge. She therefore prayed for a declaration that she was entitled to a life interest in the suit property and that the alienation by defendants 1 to 5 was not binding on her. She also prayed for possession. Defendants 1 and 3 contested the suit while the second defendant (respondent) supported his mother. The suit was dismissed for default of appearance of Viradambal and she presented an application for setting aside the order of dismissal. While that application was pending she died on the 16th of November, 1943. The respondent thereupon filed two applications before the District Munsiff. He filed LA. 198 of 1944 for recognising him as the legal representative of his deceased mother on the ground that he being the full brother of Chenna Pillai was entitled to the property after the death of the mother to the exclusion of the first defendant. He filed LA. No. 199 of 1944 for his being transposed as the plaintiff and for permission to continue I.A. No. 1104 of 1943 for setting aside the order dismissing the suit. The learned District Munsiff dismissed both the applications on merits in a common order. He then dismissed L.A. No. 1104 of 1943 without going into the merits. With regard to I.A. Nos. 198 and 199 of 1944 he held that the petitioner was not the only legal representative and that he should not be transposed as the plaintiff in view of the fact that his interest was not identical with that of his mother who had claimed only a life interest and had alleged that the respondent was one of the alienors. The respondent filed an appeal only in respect of the application to recognise him as the legal representative. He appealed also against the order in I.A. No. 1104 of 1943 but he did not appeal as far as the application for transposing himself as plaintiff was concerned. The learned District Judge allowed the appeals holding that the respondent was the sole representative of his mother, being the full brother of Chenna Pillai. He therefore directed the District Munsiff to take on file the application to set aside the order of dismissal of the suit and dispose of it on merits.
2. It is argued on behalf of the petitioner that though the respondent is the sole heir of Chenna Pillai and the view taken by the District Munsiff that he was not the sole heir is not correct, still the order of the District Munsiff has to be regarded as final as it was an order under Order 22, Rule 3 of the Code of Civil Procedure and therefore not appealable and the learned District Judge consequently had no jurisdiction to set it aside. As regards the appeal against the order in I.A. No. 1104 of 1943 the contention is that the learned Judge committed a material irregularity in the exercise of his jurisdiction. It is said that the respondent could not be permitted to continue the application to set aside the order of dismissal of the suit as the trial Court had dismissed both the applications and the plaintiff had not appealed against the order declining to transpose him as the plaintiff. It is further pointed out that the learned Judge did not take into consideration the fact that Viradambal had in her suit alleged that the respondent was one of the persons who had trespassed on the property and had effected alienations. The contention is that if this point had been considered by the learned Judge he would not have interfered.
3. On behalf of the respondent it is argued that as the application for bringing him on record as the legal representative mentions not only Rule 3 but also Rule 10 of Order 22 of the Code and as it was not contended before the District Judge that the appeal was not competent it has to be presumed that the District Munsiff purported to act under Rule 10 and therefore the appeal to the District Judge against the order on I.A. No. 198 of 1944 was competent. In this connection reliance is placed on the decisions in Muthiah Chettiar v. Govindadoss Krishnadoss : AIR1921Mad599 and Raman Nambiyar v. Rayiram Naman (1934) 67 M.L.J. 43 : I.L.R. 57 Mad. 777. It is also contended that having regard to the fact that the objection now taken is technical this Court should not interfere in revision.
4. The application filed by the respondent to bring him on record as the legal representative is in my opinion clearly an application under Rule 3 of Order 22. In the affidavit accompanying the application it is stated as follows:
As after her (Viradambal's) death, I am the person entitled to succeed to all the suit properties t am entitled to continue the suit and obtain relief. Therefore, in I.A. 1104 of 1943 filed for the restoration of the suit and for fresh trial I am entitled to be brought on record as the second petitioner....There are no other heirs to the said Viradambal Ammal excepting me. I alone have the right to succeed to the properties of Chenna Pillai, referred to in the plaint. In every way 1 alone am entitled to continue the petition in I.A. No. 1104 of 1943.
Therefore, it is just and necessary that I should be recognised as the heir of Viradambal Ammal, the plaintiff-petitioner herein and given leave to continue the said I.A. No. 1104 of 1943 and conduct the suit.
Rule 3 of Order 22 lays down the procedure to be followed in case of death of one of the plaintiffs or of the sole plaintiff. Rule 10 on the other hand runs thus:
In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
This rule does not apply to those cases which are specified in the rules that precede it. Rule 10 has, therefore, to be taken as providing for cases of assignment, creation and devolution of interest other than those mentioned in Rules 2, 3, 4, 7 and 8. It is no doubt true that if in spite of the fact that the petition really comes under Rule 3 the District Munsiff had dealt with it as if it lay under Rule 10, an appeal would be competent. But in my opinion it cannot be said that in this case the District Munsiff purported to act under Rule 10. The averments in the affidavit extracted above clearly make out a case under Rule 3. There is nothing in the order of the District Munsiff to show that he treated the petition as one coming under Rule 10. In Muthiah Chettiar v. Govinddoss Krishnadoss : AIR1921Mad599 it was no doubt held that an order purporting to be passed under Order 22, Rule 10, Civil Procedure Code, is appealable though on the facts the order should not have been passed under that rule. But in that case, from the judgment of the District Judge it was clear that he acted under Rule 10. Similarly, in the other case the judgment of the trial Court clearly showed that it acted under an order which is appealable. I therefore consider that the appeal before the learned District Judge, as far as the application of the respondent to bring him on record as the legal representative was concerned, was not competent.
5. As regards the appeal against the order on I.A. No. 1104 of 1943 the relief asked for in that application can be granted only if the respondent is recognised as the legal representative and is transposed as the plaintiff. But his applications filed in this respect were dismissed by the District Munsiff and the order on them became final as in the one case the appeal was not competent while in the other case no appeal was filed.
6. There is no force in the contention that this is not a fit case for interference in revision. It is no doubt true that the objection now raised with regard to jurisdiction of the learned District Judge was not raised before him, but that fact does not debar the petitioner from raising the objection now though it can be taken into consideration on the question of costs. It is no doubt conceded that the respondent is the sole heir of Chenna Pillai but the fact remains that the order of the District Judge on the main application was one without jurisdiction, the appeal before him not being competent, and according to the plaint the respondent himself is one of the persons who effected the alienations, to set aside which the suit had been filed.
7. I therefore set aside the orders of the learned District Judge and restore those of the District Munsiff. The revision petitions are allowed but in the circumstances of the case, there shall be no order as to costs.