1. The plaintiff in O.S. No. 451 of 1922, on the file of the District Munsif's Court of Villupuram died pending the suit and the respondent herein applied to be brought on record as the legal representative of the plaintiff. The District Munsif held that the will under which the respondent claimed the property of the deceased plaintiff was not genuine and dismissed his petition. The respondent preferred an appeal to the District Court of South Arcot. A preliminary objection was raised by the appellants herein to the appeal on the ground that no appeal lay against the order of the District Munsif. The District Judge overruled the pre-liminaVy objection and held that the will under which the respondent herein claimed was a genuine will, set aside the order of the District Munsif dismissing his application for being added as the 2nd plaintiff and remanded the suit for disposal according to law. Against that order the defendants have preferred this appeal.
2. It is contended by Mr. Bhashyam Aiyangar for the appellants that no appeal lay to the District Court from the order of the District Munsif passed under Rule 5 of Order 22 of the Civil Procedure Code. Under Order 22, Rule 3, Clause (1), 'Where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone, or a sole plaintiff or sole surviving plaintiff dies and the right to sue, survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit.' Clause (2) is as follows: 'Where within the time limited by law no application is made under sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned' Rule 5 provides: 'Where a question arises as to whether any person is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question shall be determined by the Court.' Section 367 of the old Code was: 'If any dispute arise as to who is the legal representative of a deceased plaintiff, the Court may either stay the suit until the fact has been determined in another suit, or decide at or before the hearing of the suit who shall be admitted to be such legal representative for the purpose of prosecuting the suit.' The present Rule 5 does not allow a separate suit to be brought for the purpose of determining who the legal representative is, nor does it require that the question should be decided at or before the hearing of the suit as to who shall be admitted to be the legal representative for the purpose of prosecuting the suit. It is therefore the duty of the Court to determine the question whether the person claiming to be the legal representative is the legal representative or not. Where there is a conflict between two or more persons as to who the legal representative is, the Court should determine the question and the person who is found by the Court to be the legal representative should be made a party to the suit.
3. The question is, does Order 22 contemplate the case of the Court dismissing the application of a person to be brought on record as the legal representative of the deceased plaintiff when there is no conflict between rival claimants. I think, considering the changes made in the new Code, the evident intention of the legislature was to allow the sole applicant to be brought on record as the legal representative. It did not contemplate the dismissal of a petition to be brought on record on the objection of the defendant, for it did not provide for the abatement of the suit in case such an application was dismissed. It has specifically provided for the abatement of the suit when no application is made within the time limited by law. It is open to the defendant to prove in the course of the suit that the right of the deceased plaintiff did not survive to the person brought on record. As that is the course contemplated by Order 22 there is no appeal provided against an order made under Rule 5. Under the old Code, Section 588(18) appeals were provided against an order refusing to bring the legal representative on record as well as against an order bringing the legal representative on record. The present Code advisedly has not mentioned orders under Rule 5,0. 22, among the appealable orders in Order 43. The question therefore is whether an order refusing to bring a person as the legal representative of the deceased plaintiff, when he is the only applicant for the purpose, is a decree or only an order. If the Court refuses to bring (he sole applicant on record as the legal representative of the deceased plaintiff, the Court has to dismiss the suit as it abates so far as the deceased plaintiff is concerned. The abatement of the suit is a necessary consequence of the refusal of the Court to bring the sole applicant on record. Under Rule 9, when a suit abates or is dismissed under Order 22 no fresh suit would lie on the same cause of action. The result is the applicant even though he is the real legal representative, has neither an appeal against the order refusing to make him a party nor has the right to bring a separate suit on the same cause of action. He cannot bring a suit for declaration that he is the legal representative of the deceased plaintiff, for such a suit for obvious reasons would not lie. Did the legislature intend to lay down in Order 22 that a person who is the real legal representative of a deceased plaintiff but who, on the objection of the defendant, is not made a party to the suit in the place of the deceased plaintiff should go without any remedy and lose his right to the property in the suit? I think from the wording of Rule 3 it is clear that an order refusing to bring the applicant on record as the legal representative of the deceased plaintiff, when there is no rival claimant to dispute his right is a decree, for it determines final rights between the parties.
4. It is contended by Mr. Bhashyam Aiyangar that the decision of the Court that the applicant was not the legal representative of the deceased plaintiff would not operate as res judicata in subsequent proceedings as the order was not made in a suit. Granting, for argument's sake that such1 an order is not one which is made in the suit, the principle of res judicata would apply, for it determines finally the question whether the applicant is the legal representative of the deceased plaintiff entitled to continue the suit on the cause of action alleged in the plaint or not. It was laid down by their Lordships of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 MLJ 78, that the principle of res judicata would apply to a decision which finally determines the rights of the parties even though the decision was not in a suit. In that case an order made in land acquisition proceedings as regards the title of the parties barred a subsequent suit in respect of the matter which was in dispute in the land acquisition proceedings'. It was contended in that case that the order in the land acquisition proceedings was not a decision in a former suit. Lord Buckmaster, who delivered the judgment of their Lordships observes at page 331: 'It has been suggested that the decision was not in a former suit but whether this were so or not makes no difference, for it has been recently pointed out by this Board in Hook v. Administrator-General of Bengal (1921) 40 MLJ 423, that the principle which prevents the same case being twice litigated is of general application and is not limited by the specific words of the Code in this respect.'
5. In the light of this decision it is not possible to hold that a decision under Order 22, Rule 5, would not operate as res judicata in a subsequent suit.
6. As there is conflict of authorities, I proceed to consider the most important cases on the point., In Rama Rao v. The Rajah of Pittapur (1918) 36 MLJ 169, it was held by Sir John Wallis, C.J. and Seshagiri Aiyar, J., that an order striking out from the array of parties the defendant as an unnecessary party and dismissing the suit against him was in effect a decree and was appealable as such. In Ayya Mudali Velan v. Veerayee : (1920)39MLJ218 , Oldfield and Seshagiri Aiyar, JJ., held that an order rejecting the claim of a person to be the legal representative of the deceased plaintiff and to continue the suit amounted to a decree dismissing the suit and gave him the right of appeal from that order. The District Court relied upon these two decisions for overruling the preliminary objection. I am inclined to hold that the decision in Rama Rao v. The Rajah of
7. Pittapur (3) and in Ayya Mudali Velan v. Veerayee : (1920)39MLJ218 are correct.
8. In Pakkai v. Pathumma (1913) MWM 673, it was held by Benson and Sundara Aiyar, JJ., that an order that a person is not the legal representative of a deceased plaintiff did not bar a separate suit. In that case the question whether an appeal lay against the order refusing to make a person the legal representative of the deceased plaintiff was neither raised nor considered; what the learned Judges held was that the decision of the Court refusing to make a person the legal representative of the deceased plaintiff, was not a question arising for decision in the suit and therefore the principle of res judicata did not apply. But in view of the decision of the Privy Council in Ramachandra Rao v. Ramachandra Rao (1922) 43 MLJ 78, this decision cannot be said to be good law. Further there is a specific provision in Rule 9 against a separate suit on the same cause of action.
9. Reliance is placed by Mr. Bashyam Aiyangar on Subramania Aiyar v. Vaithilinga Mudaliar (1918) MWM 198, for the position that no appeal lies from an order refusing to make a person the legal representative of a deceased plaintiff. The facts of the case are distinguishable from the facts of the present case. There the Court did make one of the rival claimants a party in the place of the deceased plaintiff, and the suit did not abate in consequence. The Court held that the rival claimants who were not made parties to the action had no right of appeal. The case is different when the sole applicant is not made a party on the ground that he is not the legal representative for the order amounts to a final determination of one of the questions in issue between him and the defendant and that decision finally determines the result of the suit. The case in Venkata Seshamma v. Ganneswara Rao (1924) MWM 58, is also distinguishable from the present case. In that case also the suit did not abate as one of the applicants was not made a party to the suit. Spencer and Kumaraswami Sastri, JJ., held that no appeal lay against an order refusing to make some of the claimants parties to the action and they distinctly say that there was no abatement of the suit. In Subbarayya v. Saminadaiyar : (1895)5MLJ63 , it was held that an appeal by against an order dismissing the application of a person to be brought on record as the legal representative of the deceased party. The learned Judges observe at page 497:
The title to represent being denied, there is in the present case a dispute between the claimant and the defendant., We therefore think the District Judge ought to have entertained the appeal. We also think that the appeal lay against the decree dismissing the suit.' This was followed by a Bench of the Allahabad High Court in Hanwant Singh v. Ramgopal Singh ILR (1908) 308.
10. In Ram Sarup v. Moti Ram ILR (1920) Lah. 493, it was held that no appeal lay from an order dismissing the application of a person to be brought on record as the legal representative of a deceased plaintiff and that such an order was not a decree. In Sital Prasad v. Bajrangi Sahai (1911) 13 IC 70 it was held that such an order did not come within the definition of the word 'decree' as the question was not in controversy in a suit and as the person seeking to be added as a party was not a party to the suit. In a recent case in Rukmani Ammal v. Veeraswami Aiyangar : (1924)47MLJ370 Jackson, J. held that no appeal ay against an order under Rule 5 of Order 22.
11. It is unnecessary to deal with the other cases quoted by Mr. Bashyam Aiyangar. I think the proper course in such cases would be to make the sole applicant a party to the suit and then raise an issue as to whether he is the legal representative or not as preliminary issue and try the other issues if the preliminary issue is found in favour of the person brought on record. Such a decision would amount to a decree and the person who is brought on record as the legal representative would have a right of appeal against the decree.
12. As, however, there is a conflict of authorities on this point 1 would refer for the decision of a Full Bench the question whether an appeal lies against an order refusing the application of a person to be brought on record as the legal representative of a deceased plaintiff on the objection of the defendant when there is no rival claimant for being brought on record as his legal representative.
13. I agree that there being a conflict of authority on the question, it should be referred for the decision of a Full Bench. My own view is that no appeal lies.
14. An order of this kind could be appealed against as an order under the old Civil Procedure Code. Under the present Code no appeal lies against it under Order 43 and I do not think that it can be appealed against as a decree. The decision on an application under Order 22, Rule 3 is not a matter that is in controversy in the suit itself. If there is a dispute whether !he applicant is or is not the legal representative, it has to be determined under Rule 5 before the suit can be proceeded with.