1. Kamamma filed a suit for a declaration that she was the owner of certain property and for an injunction restraining the defendants from interfering with her possession.
2. The husband of Kamamma entered into an agreement with his brother whereby he was to enjoy the suit land for his lifetime, after which it was to pass to his brother absolutely. The widow claimed that that agreement was not binding on the estate, which she represented, and that in any event she had become the owner of the property by adverse possession. Her suit was dismissed. She in due course filed an appeal (A.S. No. 434 of 1945); but before she did so she had adopted the present appellant. He, however, was not made a party to the appeal; and some time after the appeal had been filed the widow died. The appellant then sought to be brought on record as her legal representative. Thereupon, two applications were filed; I.A. No. 773 of 1945 under Order 22, Rule 3, for the appellant to be brought on record as the legal representative, and again on the date of hearing, I.A. No. 118 of 1946 under Order 22, Rule 10 of the Civil Procedure Code, and Order 1, Rule 10 of the Civil Procedure were filed. These petitions were dismissed on the ground that the appellant was not the legal representative of the widow and that as her interest had not devolved upon him he could not be added as a party under Order 1, Rule 10 of the Civil Procedure Code. Upon his applications being dismissed, the appeal was held to have abated.
3. Against the order on the petition filed under Order 22, Rule 3 of the Civil Procedure Code, C.R.P. No. 1418 of 1946 has been filed; and against the order in I.A. No. 118 of 1946, C.M.A. No. 619 of 1946 has been filed.
4. The main question discussed in this appeal and civil revision petition is whether the appellant has any remedy by way of an appeal against the order that the appeal has abated. When a similar question was considered in Subramania Iyer v. Venkataramier 31 IND.CAS. 4, the learned Judges said,
We think that an order of the Court declaring that a suit has abated owing to the cause of action not surviving is a decree, as it determines that the right of the plaintiff ceased to exist on his death and, therefore, it falls within the definition of a decree, there being no appeal provided for in the Code from that order.
They therefore held that the only remedy of a person whose application to be brought on record as a legal representative has been dismissed is to appeal against the order of abatement. It has been argued that this decision cannot be right and that later decisions of this Court have thrown some doubt on its correctness. It is argued that since the person seeking to be brought on record as a legal representative is not a party to the appeal, his application to be made a party having been dismissed, he is not a party to the order of abatement and would therefore have no right of appeal. Although he is not eo nomine a party to the order of abatement, yet, in essence, every person who could possibly claim any interest through the late widow can be said to be affected by the order, because the order is in effect a finding that there is no person entitled to continue the suit after the death of the appellant. Subramania Iyer v. Venkataramier (1914) 31 I.C. 4, was followed in Suppa Naicken v. Perumal Chetti : (1916)30MLJ486 where the question was discussed at much greater length. Subramania Iyer v. Venkataramier 31 IND.CAS. 4, did not discuss the earlier decisions of this Court; but in Suppa Naicken v. Perumal Chetti : (1916)30MLJ486 , Bhikaji Ramachandra v. Purushottam I.L.R. (1885) Bom. 220, Subbayya v. Saminatha Aiyar : (1895)5MLJ63 , Meenatchi Achi v. Anantanarayana Iyer : (1902)12MLJ380 , as well as Subramania Iyer v. Venkataramier 31 IND.CAS. 4, were followed and other decisions of this High Court and of. other High Courts considered. It is true that in the particular case under consideration in Suppa Naicken v. Perumal Chetti : (1916)30MLJ486 , the person claiming to be the legal representative had been added as a party and the question was raised in the form of an issue; but that does not mean that this decision was an obiter dictum; for the learned Judges thought it necessary for the disposal of the matter before them to give a finding on the question whether an order of abatement was a decree, and for the purpose of giving a decision considered the authorities above referred to. In Ayya Mudali Velan v. Veerayyee : (1920)39MLJ218 , Oldfield and Seshagiri Aiyar, JJ., held that an order refusing to bring a party on record was itself a decree and therefore appealable as such; but that decision was expressly overruled in Venkatakrishna Reddi v. Krishna Reddi (1925) 50 M.L.J. 485 : I.L.R. 49 Mad. in which, however, the question' whether an appeal lay against an order of abatement was expressly left open. That decision did not, therefore, weaken the effect of the decisions in Subramania Aiyar v. Venkataramier 31 Ind.Cas. 4, and Suppa Naicken v. Perumal Chetti : (1916)30MLJ486 , and the cases that preceded them. As recently as in Gopalakrishna v. Lakshmikantham : AIR1943Mad569 , Happell, J., held that Suppa Naicken v. Perumal Chetti : (1916)30MLJ486 , is still good law and that a person claiming to be a legal representative and whose application to be brought on record is dismissed has no other remedy except to appeal against the order of abatement.
5. As far as C.M.A. No. 619 of 1946 is concerned, Order 22, Rule 10, would not apply, since that rule applies only to cases not covered by the rules preceding it; so that cases covered by Order 22, Rule 3, could not be brought within the ambit of Order 22, Rule 10. No appeal therefore lies.
6. Even if we assume that the petitioner might have been brought on record as the legal representative of his mother, on the grounds that she had acquired title by adverse possession and that he was her heir and that technically there is no bar to the institution of a civil revision petition, this Court would not ordinarily entertain a revision petition when an alternative remedy by way of an appeal against the order of abatement lies.
7. I have been requested to convert the civil revision petition into an appeal; but that cannot be done, because the order to be appealed against is not the order against which the civil revision petition has been preferred. It is true that the order of abatement may have been passed immediately after the order dismissing the interlocutory applications, but that would make it nonetheless a distinct order.
8. The civil revision petition and the civil miscellaneous appeal are therefore dismissed with costs, one set for both proceedings. All the printing charges may be included in the costs.