1. One Ramaswami Mudali had married two wives. He divided with his sons by the first wife one of whom was a minor. This minor son was given his share with his father as guardian. Ramaswami Mudali went to Masulipatam for treatment and there made a will bequeathing his property to this minor son by his first wife. It is then said that seeing that his second wife was pregnant he executed a codicil bequeathing his property to his second wife and the unborn child. After his death the will was presented for registration. The codicil was disputed by his first wife and her sons and registration was refused. The second wife brought a suit under Section 77, Registration Act, to have the codicil registered. The Subordinate Judge directed registration of the codicil and on this an appeal was taken to the High Court. (A.S. No. 415 of 1924). After the death of Ramaswami Mudali his minor son by his first wife brought suits on two promissory notes executed by third parties in favour of Ramaswami Mudali. In those suits he made his brothers, the second wife, and the female child, who had since been born to her, also parties. The female child was defendant 5. The debtor pleaded discharge. The suit to enforce registration was disposed of by the Sub-Judge while these suits were pending. As a result of this, since the plaintiff admitted that under the judgment of the Subordinate Judge which supported the codicil he was not entitled to the amounts, the suits were dismissed. But the learned Additional District Munsif when he came to the matter of costs gave amongst other reasons for directing each party to bear his own costs, that as the plaintiff had filed an appeal to the High Court against the judgment of the Additional Subordinate Judge his right to recover the said amounts on the basis of the will in his favour would revive if the said judgment is reversed. In the High Court there was a settlement of the matter between the sons of first wife including the minor and also the second wife and her minor daughter, defendant 5. There was a decree in terms of the compromise. It was agreed that the codicil was not valid. At the same time the terms of the will were departed from and a fresh arrangement made. Under this compromise the debts under the two promissory notes which had been sued upon were allotted to the minor son by the first wife who had brought the suits. He thereupon filed petition under Section 151, Civil P.C., to have the suits revived. These petitions were dismissed and it is against these orders that the present revision petitions are filed.
2. The learned District Munsif who dismissed the petitions was not the same officer who passed the order dismissing the suits. He gave as one of his reasons for refusing the request that defendant 5, who is the person to benefit under the codicil, was not a party to the compromise or the litigation in the High Court. That remark is not quite correct. Defendant 5 was certainly not a party to that litigation because the suit was instituted by her mother before she had been born. But she was a party to the compromise as represented by a guardian. He also treated the petitions which had been filed in September 1928, while the judgment and decree of the High Court had been obtained on 10th April 1928, as review petitions and held that the time necessary for obtaining copies of the High Court's judgment and decree could not be deducted in computing limitation. He considered also the main contention which is put before me, namely, that the suits should be considered to be still pending, and repelled it.
3. It is necessary to note exactly the circumstances under which the suits were dismissed and the order passed dismissing them. The following issues were framed in the two suits:
4. O.S. No. 78 of 1924.-1. Is the plaintiff entitled to the suit amount? 2. Is the suit maintainable without production of succession certificate? 3. Is defendant 4 a necessary party? 4. Is the payment of Rs. 500, pleaded by defendant, true? 5. To what relief?
5. O.S. No. 128 of 1924.-1. Whether plaintiff is entitled to sue? 2. Whether suit is bad without the succession certificate? 3. Whether defendant 1 is not liable for costs? 4. Whether the discharge pleaded is true? 5. What relief is the plaintiff entitled to?
6. The rest of the judgment may be quoted in full.
Issue 1 in both the suits: The suit pro-notes were executed in favour of the plaintiffs' deceased father. The plaintiff seeks to recover the amounts of the suit pro-notes as a legatee of the said amounts under the will of his deceased father. It is admitted by both parties that plaintiff is not entitled to the suit amounts as under the judgment of the Additional Subordinate Judge of Masulipatam in O.S. No. 22 of 1924 (Ex. 1) a codicil purporting to have been executed by plaintiff's deceased father and revoking the will in plaintiff's favour has been found to be true and genuine and as under the said codicil defendant 5 is entitled to the suit amounts. I therefore find on issue 1 that the plaintiff is not entitled to recover the suit amounts. Issues 2 to & in both the suits: In view of my finding on issue 1, these issues do not arise for consideration. Issue 5: In the result, I dismiss the plaintiff's suits. As the suits have not been dismissed as result of a decision on the merits of the case, as plaintiff has filed an appeal to the High Court against the judgment of the Additional Subordinate Judge of Masulipatam in O.S. No. 22 of 1924, and as his right to recover the suit amounts on the basis of the will in his favour would revive if the said judgment is reversed, I think it fair and proper to direct each party to bear his own costs of these suits.
7. The learned District Munsif is clearly right in holding that the suits were not pending and in fact he has put the case too highly for the petitioner when he says that
in the portion of the judgment relating to costs it is stated as a matter of course the plaintiff may apply for restoring these suits if another suit in the Subordinate Judge's Court, which then stood decided against the plaintiff, was subsequently decided on appeal in plaintiff's favour.
8. There is no such permission given in the judgment or order as to costs. The remark about the revival of plaintiff's rights is simply mentioned as one of three reasons for directing each party to bear his own costs. The other two reasons are stated to be that the suits have not been dismissed as a result of a decision on the merits in the cases and that the plaintiff had filed an appeal to the High Court against the judgment of the Additional Subordinate Judge. The second reason is of course merely a part of the third reason which follows it. The statement that the suits were not dismissed as a result of a decision on the merits of the case is, I think, a somewhat loose phrase of which the plaintiff cannot take advantage. It will be seen that for the purposes of the cases at least the plaintiff chose to admit the decision against him in O.S. No. 22 of 1924 as binding. That decision was not res judicata with regard to the suits on the promissory notes and it was perfectly open to him to have asked the Court to raise and decide in the pro-note suits the important matter as to the genuineness and validity of the codicil. The plaintiff having, if only for the purposes of the cases, admitted the correctness of that decision, the Court had no option but to dismiss the suits and such a dismissal was one on the merits. I think the learned District Munsif really meant that the suits had been allowed to be dismissed without contest by the plaintiff, which would have been an equally good reason for the order as to costs. There is no sort of proviso that the suits will be revived if the plaintiff succeeds in the appeal in the High Court. The expression of opinion that they will revive is a pure obiter dictum introduced solely in considering the matter as to costs.
9. Although therefore the petitions were in form under Section 151 of the Code, and it is still argued before me that was the correct section, I agree that they must be taken to have been revision petitions. As such, it is not disputed that they were out of time since the period requisite for obtaining copies of the High Court's judgment and decree could not be deducted. I may also perhaps note another obstacle in the way of allowing revision, a reason which has been mentioned in a judgment by Curgenven, J., in C.R. Ps. Nos. 673 and 674 of 1928 quoted in another connexion in this case, i.e., that under the decision of the Privy Council in Kotaghiri Venkatasubbamma Rao v. Venkatarama Row (1901) 24 Mad 1 the new and important matter contemplated by Order 47, Rule 1, Civil P.C., must be something which existed at the date of the decree. The learned Judge has there no doubt noted a case in Maung Kyaw v. Ko Aye AIR 1927 Rang 189, which he says has contrived to reconcile with the Privy Council ruling the grant of review in circumstances something like the present but the learned Judge notes that a contrary view has been taken by Kumaraswami Sastri, J., in G. Venkamma v. G. Ranga Rao AIR 1922 Mad 227, and since the Subordinate Judge with whom he was dealing in that civil revision petition guided himself by these decisions, which were not dissented from, he was not prepared to interfere. Anyhow it is not disputed before me on the question of limitation that the petitions must fail regarded as revision petitions.
10. Assuming that the petitions can be regarded as under Section 151 of the Code, the following cases have been quoted in favour of the petitioner Rameshwar Dayal v. Guru Sahai (1918) 47 IC 137, by the Judicial Commissioner, Oudh, Kalyan Singh v. Ramgolam Singh AIR 1920 Cal 399, Neki v. Chhajju Ram AIR 1924 Lah 225, Muhammad Shafi v. Chedu : AIR1930All100 , and Bhagwan Dayal v. Param Sukh Das (1917) 39 All 8. The first is of no authority in this Court, and the facts there were different. It was a suit for pre-emption and the plaintiff at the time had no share in the property. Consequently his suit was dismissed with the following order:
At this moment the plaintiff owns no share and cannot therefore sue for pre-emption. If his appeal is accepted he may apply for revival of the suit if so advised.
11. The Court held that this was not a proper order to be passed and that the suit should have been kept pending but it was not prepared to say that it was an illegal order. It had to construe what the Court meant by the order and it held that the order reviving the suit was not without jurisdiction under Section 151 of the Code As pointed out above, there is no order here that the suit can be revived. Moreover, it has to be noted that the Allahabad High Court, which the Oudh Judicial Commissioner had to follow, has taken a more extended view of the powers of the Court under Section 151 than has been taken by our High Court: vide in Neelaveni v. Narayana Reddi AIR 1920 Mad 640, where this High Court holds that where there is a specific provision for restoring an ex parte decree under Order 9, Rule 13, it is not legitimate to invoke the inherent powers of the Court under Section 151. The reasoning would appear to apply with still greater force where the dismissal of the suit has not been ex parte as here. Kalyan Singh v. Ramgolam Singh AIR 1920 Cal 399, is a very peculiar case, and there was a definite reservation of the right of revival. A remark in that case that:
it is the duty of the Judge to try the case set down for trial before him and the failure of the Court to decide a case after submission cannot be permitted to defeat the substantive right of the litigant,
is relied on. It has, I consider, no application to the present case. For, as pointed out above, once the plaintiff chose to admit for purposes of the cases the correctness of the judgment of the Subordinate Judge with regard to the codicil, the Court had no option but to dismiss his suits on the promissory notes. Neki v. Chhajju Ram AIR 1924 Lah 225 is not parallel to the present case because the only order passed in the matter had been No orders necessary,' and quite clearly under the circumstances, the application for leave to appeal to the Privy Council was revived. Bhagwan Dyal v. Param Sukh Das (1917) 39 All 8 is a case where a minor had not been properly represented. Muhammad Shafi v. Chedu : AIR1930All100 , is a very peculiar case and quite different from the present. As noted above, Allahabad interprets Section 151 in a more liberal way than does Madras. Khajooroonissa v. Rowshan Jehan (1876) 2 Cal 184 has no application. It related to setting aside compromise on the ground of fraud, and fraud will vitiate the most solemn acts of a Court.
12. The plaintiff in the present suits could have either (as observed above) taken an issue in the suits on the promissory notes with regard to the codicil or he could have asked the Court to keep the suits pending until the appeal in the High Court was decided, or he could have appealed against the decrees and asked that those appeals in the High Court be kept pending till the appeal with regard to the codicil was decided. Finally he might have come by way of revision. He did not take any one of the first three courses and he does not profess to have taken the fourth. But if the petitions are to be regarded as for revision, for the reasons pointed out above, they must fail. There can be no question that the obiter dictum of the learned District Munsif that the plaintiff's right to recover the suit amounts on the basis of the will in his favour would revive if the judgment of the Subordinate Judge's Court is reversed, if by this he meant that the right to sue would revive, is incorrect. The alleged debtors under the notes were not parties to the suit before the Subordinate Judge and the decision in that suit could not possibly operate automatically to set aside the decrees dismissing the suits against them. Authority for this proposition is to be found in Naganna v. Venkatappayya AIR 1923 PC 167 (a Privy Council case) in which Shama Pursad Roy v. Hurro Purshad Roy (1863-66) 10 MI A 203 (P C) is distinguished. In this connexion I would refer again to the judgment of Curgenven, J., in C.R. Ps. Nos. 673 and 674 of 1928. That was a stronger case for allowing revival than the present; because the two suits, one of which had been taken in appeal and the other not, had been tried together by consent of parties. The petitioner there preferred an appeal to the High Court against one decree but not against the other and sought to have the decree in the suit in which she had not appealed altered by application to the trial Court. With respect I adopt the language of my learned brother when he says that:
the contention involves the general proposition that the finding in one suit may operate so as automatically to supersede a finding in a contrary sense in another suit between the same parties.
(in the present case the parties are not even the same) as the decree is based upon that finding so that it is not necessary to follow the ordinary course of obtaining a reversal of the decrees on appeal. He then relies on the Privy Council decision cited above to refute this contention. It is true that in the present case the plaintiff might have been misled by the obiter dictum of the Judge of the trial Court in giving direction as to costs; but it is also quite possible that he was induced not to appeal against the decrees in the promissory note suits as it would be less expensive to try and get them revived if he succeeded in the appeal on the other suit. In any case, it is perfectly clear that the Court gave him no promise that the suits would be revived and that the remark was made solely as one reason justifying order as regards costs. I may also add that, in my opinion, the learned District Munsif in dismissing this application is correct in noting the fact that defendant 5 is not a party to the decree passed by the High Court. It would therefore appear that she is still at liberty to assert her own rights under the codicil as against the debtor respondents, in the sense that the compromise decree is not executable against her. It is no doubt argued that any suit by her will be barred by limitation but such a consideration is, I think, insufficient to remove the objections which the alleged debtors under the promissory notes raise to the revival of these suits on the strength of a decree to which defendant 5 was not a party. I consider that the petitions were rightly dismissed and that there is no ground for interference. The revision petitions are dismissed with costs. (In C.R.P. No. 1390 of 1929).