Govinda Menon, J.
1. The 11th defendant in O. S. No. 1178 of 1945 on the file of the District Munsif's Court, Kozhikode out of which this second appcfil arises is the appellant. The suit was for setting aside the decree in O. S. No. 1150 of 1944 on the ground that the Court had no jurisdiction to pass the same and hence the delivery that followed it is void and inoperative. Both the lower Courts have decreed the suit. The short facts are these. The first defendant Mana had leased out the plaint property on 22-5-1920 to one Ukkappan Nair, who was the karnavan of the plaintiffs and defendants 2 to 6 on behalf of their tarwad and to Cheria Chandu the father of defendants 7 to 10 the two named individuals being joint lessees. As rent was in arrears O. S. No. 1150 of 1944 was brought for recovery of possession with arrears of rent from 1936-37 to 1943-44. To that suit the two defendants were the lessees Ukkappan Nair and Cheria Chandu but after summons was taken out itwas discovered that both the defendants were dead. Therefore by I. A. No. 4233 of 1944 the legal representatives of the two defendants were brought on record as defendants 2 to 6 and 7 to 10 respectively, who contested the suit on the ground that part of the rent had been paid, that what was paid towards the revenue had been credited towards the rent due, that the price of paddy claimed was excessive and that the plaintiff was not entitled to evict them. Despite these contentions the suit was decreed and in execution of the decree defendant 1 herein recovered possession of the property and thereafter demised it to defendant 11 who was put in possession.
2. The allegations in the present suit are, that the decree in O. S. No. 1150 of 1944 was void and did not affect the suit property oti the ground that both the lessees who were impleaded in that suit were dead at the time the suit was filed and despite the knowledge of that fact a false affidavit has been filed in support of the application for bringing on record the legal representatives of the two deceased and it was only on the strength of the averments contained therein that the present defendants 2 to 6 and 7 to 1ft were added as the legal representatives ol the original defendants. It was therefore alleged that the Court had no jurisdiction to bring on record the legal representatives of persons who had died before the institution of the suit for the reason that a plaint filed against dead person cannot be considered to be in existence at all and the whole proceedings were ab initio illegal and void. The plaintiffs also contended that the defendants 2 to 10 were guilty of fraud and negligence in the conduct of the suit in not raising proper pleas which if raised would have non-suited the plaintiff in O. S. No. 1150 of 1944. The present plaintiffs being the other members of the tarwad of defendants 2 to 6 and as Ukkappan Nair was a lessee on behalf of the tarwad are not bound by the decree in O. S. No. 1150 of 1944. As stated already the lower Courts have found that the entire proceedings in O. S. No. 1150 of 1944 were void from the very inception and have decreed the suit and hence the present second appeal.
3. That Ukkappan Nair and Cheria Chandu were not alive when the plaint in O. S. No. 1150 of 1944 was filed in Court admits of no doubt and there is no dispute whatever that in ignorance of that fact and on the assumption that they were alive on the date of the suit the District Munsif by I. A. No. 4233 of 1944 ordered their legal representatives to be brought on record. What has now to be considered is how far that procedure is justified in law. There is also no contention that if a suit for recovery of property with arrears of rent were to be filed on the date when the application to bring on record the legal representatives was filed the proper persons against whom such a suit ought to be filed are the proposed legal representatives and that the relie, claimed against such persons would not be barred. In these circumstances, the point for consideration is whether it can be held that the entire proceedings in O. S. No. 1150 of 1944 which was hotly contested by the present defendants 7 to 10 should be deemed to be void ab initio. The proposition of law is well settled that a plaint filed against a dead person is non est and that there are no proceedings that can be deemed to be pending in Court by the filing of such a plaint as there is nothing in the Civil Procedure Code which authorises the institution of such a suit against a deceased person. There is no jurisdiction in the Court to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased person even when the suit was instituted bona fide and in ignorance of the death of the defendant. Vide the decision in -- 'Veerappa Chetti v. T. Ponnen', 31 Mad 88 (A). It is on this principle that both the lower Courts have held that the entire pro-ceedings in O. S. No. 1150 of 1944 were void and inoperative. It has to be mentioned that Section 153, C. P. C., was not in existence at the time of the decision in 31 Mad 88 (A). Supposing the plaintiff in O. S. No. 1150 of 1944 when apprised of the fact of the death of the persons impleaded as defendants in the plaint before the filing of the suit, took return of the plaint and by using the same stamps scored out the names of the existing defendants and in their place had the proper persons impleaded and presented the plaint as a fresh one, can it be said that such a plaint cannot be treated as instituted on the day on which the fresh presentation was made. In my opinion there is nothing wrong in that procedure. All the cases in which it has been held that the Court has no power to amend the plaint filed against a deceased person by substituting the names of the representatives of the deceased person arose out of the applications for amendment of the plaint made at a time when the suit if instituted would have become barred. The result of the amending would put back the suit to the date of the original presentation of the plaint and thereby save the period of limitation. No case has been cited before me at the bar in which it has been held that even if a fresh suit filed on the date when the amendment was made is not barred, still the Court is deprived of the power of amending which results in making the suit a new one filed afresh. I shall now examine the cases on the point.
4. The facts of the case in 31 Mad 88 (A) are as follows: A suit was filed on 5-9-1905 on two promissory notes dated 25-9-1902 and 16-10-1902 respectively. On the date of the plaint the executant oE the promissory notes was dead but in ignorance of that fact ho was impleaded as defendant. On 19-'4-1906, a petition was put into the eflect that the defendant was dead and asking for his legal representatives to be brought on record and the plaint was amended accordingly on 27-4-1906. The point for consideration was whether such an amendment made on a petition was justified or not. The result of the amendment was as if the suit had been filed properly on 5-9-1905. The learned Judges following the decision in -- 'Mohan Chand Kandu v. Azim Kazi', 12 Suth W R 45 (B) that the Court had no jurisdiction to amend the plaint by adding legal representatives on the principle laid down in -- 'Swindell v. Bulkeley', (1886) 18 Q B D 250 (C), that the issue of a writ against a dead person could be nothing but a nullity, held that the presentation of the plaint corresponding to the issue of writ should stand on the same footing. There is no consideration of the correctness or otherwise o the proposition regarding the validity of the amendment it the amended plaint were to be considered as having been filed on the date when the amendment was sought for and when the suit against the persons newly impleaded would not he barred.
This point of view might receive some support from the decision in--'Mallikarjuna v. Pullayya', 16 Mad 319 (D)where the amendment was sought for in appeal against the decree in a suit in which at the time the plaint was filed the defendant had died and the learned Judges held that by allowing the amendment the plea of limitation would have been denied to the persons sought to be impleaded under the amendment. In 'Rasa Goundan v. Pichamuthu Pillai', AIR 1918 Mad 794 (E) Srinivasa Ayyangar J. followed 31 Mad 88 (A), and held that a suit filed against a dead person is no suit at all and no question of amendment of the plaint arose in such a case and that there was no power of amendment vested in the Court. There is nothing to show that in this case, at the time the amendment was sought for the suit if instituted as a fresh one would be barred by limitation. 31 Mad 86 (A) was again followed in--'Arunachalam Chottiar In re', AIR 1916 Mad 440.
The distinction which is now sought to be made was not considered there, for at the time the amendment was sought for the suit might have been barred by limitation. The facts were slightly different in--'Calicut Municipal Council v. Kunhipathumma : AIR1933Mad454 . There, a suit was filed on 10-3-1928 for recovery of property tax for the year ending 31-3-1925 but the defendant bad died on 2-3-1928. On 21-4-1928, that is, more than three years after the due date, an application was made under Order 1, Rule 10, Civil P. C., to have the legal representatives of the deceased person impleaded and recourse was sought under Section 14, Limitation Act. It was held that Section 14, Limitation Act, had 'no application as in the first instance there was no suit pending at all.
It has to be remembered that the plea put for-ward by the alleged legal representatives against their impleading was that the suit was barred by limitation against them under Section 22, Limitation Act. Even here the tacts of the case show that at the time the application to imptcad the legal representatives was made a suit if instituted on that date would have become barred. The decision in--'Chitambara Chet-tiar v. Narayanaswami Iyer', 1928 M W N 240 (H), also lays down the same principle. Even there at the time the application for amendment was made the suit if instituted would have been barred by limitation.
Following 31 Mad 86 (A) Ananthakrishna Aiyar J. held that where at the time of the institution of the suit, the sole defendant is dead, an application to amend the plaint by bringing the legal representatives of the deceased defendant on record is not maintainable. What would have been the decision if on the date when the amendment was sought for, a suit against the legal representatives had not become barred, it is impossible to say. The learned Judge referred to the Full Bench decision in--'Gopalakrish-nayya v. Lakshmana Rao', AIR 1925 Mad 1210 (I) and distinguished it on the ground that it related to a case of an appeal being preferred against the respondent who was dead.
It is clear from a review of the cases already made that in not one of them was the suit in time if it could have been filed on the date when the application for amendment was made. The principle enunciated in 31 Mad 86 (A) was as already stated, before the enactment of Section 153, Civil P. C., which gives ample powers to amend any defect or error in any proceeding in a suit and all amendments shall be made for the purpose of determining the real question or issue raised by or depending upon such proceeding. That the power conferred under Section 153, Civil P. C., is applicable to appeals is clear from the provisions of Section 141, Civil P.C.
5. The Full Bench decision in AIR 1925 Mad 1210 (I), runs somewhat counter to the cases already referred to. The Full Bench held that if an appeal is presented against a person who is dead at the date of presentation, the Court may under Section 153, C. P. C., permit the cause-title to be amended or may return the appeal memorandum for amendment and re-presentation. If the appeal memorandum is not allowed to be amended, the party may apply for refund of the spoilt stamp and may present a fresh appeal. But if the appeal is out of time against the legal representative, the Court has always power to excuse the delay in presentation before it can proceed to hear the appeal but it is a matter for its discretion whether it would excuse the delay.
The learned Judges follow the earlier decision in C. M. P. No. 2807 of 1923 (Mad) (J) where it was held that after all the question resolves itself into one of court-fees only. In my opinion the principles laid down in the Full Bench case apply to the facts of the present case. Section 153, C. P. C., in so many words speaks of an amendment by a Courtof first instance and this can be extended so far as the appellate Court is concerned, by the operation of Section 141, C. P. C. That being the case there is nothing that prevents the trial Court from considering the plaint as if it was filed against the new parties on the date the application for amendment was made.
In the present case, it seems clear that on the date of the amendment no portion of the suit was barred by limitation and even if any suit was barred the defendants not having raised the question of limitation the decision is binding on them. The present plaintiffs have withdrawn all pleas relating to fraud and collusion and they have rested their case solely on the circumstance of ab initio void nature of O. S. No. 1150 of 1944. No authority has been placed before me to the effect that it is not possible to consider the plaint as freshly instituted against the new defendants on the date when the amendment was sought for.
The principles laid down in AIR 1925 Mad 1210 (I) cannot be restricted to the case of appeals alone. If the appeal memorandum filed against a dead person can be returned and the same stamp used for presenting the appeal afresh against his legal representatives there cannot be any difference in principle in Ihe matter of re-presenting a plaint in a suit after adding the legal representatives of a dead person. If the plaintiff in O. S. No. 1150 of 1944 had taken back the plaint and after scoring out the names of the deceased individuals, inserted the names of the present defendants 2 to 10 and represented the plaint making the necessary corrections and alterations and it such a suit was not barred against the defendants on the date it was represented then nothing could be said against the correctness or propriety of such a procedure.
I do not think that there is any reason why the plaint should not be deemed to have been newly presented. If that is so, after a contest there has been a decree by a competent Court against defendants 2 to 10 which would hind the plaintiffs herein, in the absence of any fraud or collusion on the part of defendants 2 to 10. In this view it seems to me that the decree in O. S. No. 1150 of 1944 cannot be declared ab initio void. The second appeal is, therefore, allowed and the suit is dismissed, but as the question in the form in which it has been presented before this Court by Mr. Pocker was not raised in the Courts below each party will bear his or their costs throughout.