1. I have had an opportunity of reading the judgment which will be delivered by my learned brother, and I concur with him in dismissing the appeals.
2. The words 'the legal representative * * may apply' introduced into Sections 365 and 368 by the Act of 1888 are not very happily chosen, and better expressions have been substituted for them in Order XXII of the new Code, but they cannot, in my opinion, mean that any person who chooses to apply, alleging that he is a legal representative, is to be accepted as such by the Court, whether his claim is disputed or not.
3. The provisions of Section 368 then can Only be applied when the applicant is the legal representative, and not when he is merely a person alleging himself to be such representative.
4. The Court to which the application is made has necessarily to decide whether the applicant is or is not to be brought on the record, but the Code does not say what the Court is to do to that end when there is a dispute. Section 367 applies only to the case of disputes between persons claiming to be the representatives of a deceased plaintiff. This much is clear: the present Code does not direct the Court to make an investigation; when there is a dispute in the case with which it deals, it gives a discretion.
5. The question was dealt with in Athiappa v. Ayanna 8 M. 300 before the amendment of the Code as one to which Section 32 may be applied; and so far as I can see the only difference made by the amendment is this : that it is now clear that the Court has power to add the representative as a party.
6. It seems to me, therefore, that following Athiappa v. Ayanna 8 M. 300 I may still hold that a discretionary power is vested in the Court, and in the present case it is impossible to say that its discretion has been wrongly exercised by the Court.
7. There is no necessity in the case before us to stay the suit, as is required in the case to which Section 367 is applicable. The plaintiff continues it at his own risk, now that the question has been raised.
8. The appeals are dismissed with costs.
9. The facts are these. The 4th defendant died, and the plaintiff brought on record under Section 368, Civil Procedure Code, one Chelamcherla Pichia whom he alleged to be the adopted son of the deceased. At a subsequent date the appellant applied to be brought on record as legal representative of the deceased, alleging that Chelamcherla Pichia was not the adopted son of the deceased. The District Judge rejected the application and referred the appellant to a separate suit. It is urged on appeal that the District Judge ought to have decided between the rival claims of Chelamcherla Pichia and the appellant, and that under the last paragraph of Section 368, Civil Procedure Code, as amended by the Act of 1888, the District Judge was bound to bring the appellant on record.
10. I am clearly of opinion that the District Judge was not bound to bring the appellant on record or decide between the rival claims of Chelamcherla Pichia and the appellant. The last paragraph of Section 368, Civil Procedure Code, does not state that any one claiming to be the legal representative of the deceased defendant may apply. The inference is that only a person whose status as legal representative is not disputed or who has already established his claim to represent the deceased, may make the application. The appellant's claim is denied by the plaintiff, and it has not been established in any other Court.
11. The appeals must be dismissed with costs.