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Konduvetty Thakkiyakkal Shaik Aptab Shaha Valiya Thangal Vs. Moyan and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in39Ind.Cas.371
AppellantKonduvetty Thakkiyakkal Shaik Aptab Shaha Valiya Thangal
RespondentMoyan and ors.
Cases ReferredBalabai v. Ganesh
Excerpt:
civil procedure code (act v of 1908), section 105, order xxii, rule 5 - decision as to legal representative--appeal, whether lies. - 1. it is argued first that the district munsif's order impleading 2nd plaintiff as legal representative of deceased 1st plaintiff was final and that the lower appellate court had no right to remand an issue on the point or to dismiss the suit in consequence of its own decision on it. there is, no doubt, an order of the district munsif, dated 12th august 1913, on 2nd plaintiff's petition, impleading him as legal representative of 1st plaintiff. but firstly, we cannot accept this order as a decision under order xxii, rule 5, the provisions of which the district munsif apparently overlooked. for in the same order 5th defendant, a rival claimant to 1st plaintiff's succession, was brought on the record without any attempt being made to adjudicate on his and 2nd plaintiff's claims; and at an.....
Judgment:

1. It is argued first that the District Munsif's order impleading 2nd plaintiff as legal representative of deceased 1st plaintiff was final and that the lower Appellate Court had no right to remand an issue on the point or to dismiss the suit in consequence of its own decision on it. There is, no doubt, an order of the District Munsif, dated 12th August 1913, on 2nd plaintiff's petition, impleading him as legal representative of 1st plaintiff. But firstly, we cannot accept this order as a decision under Order XXII, Rule 5, the provisions of which the District Munsif apparently overlooked. For in the same order 5th defendant, a rival claimant to 1st plaintiff's succession, was brought on the record without any attempt being made to adjudicate on his and 2nd plaintiff's claims; and at an earlier stage in the disposal of the petition the District Munsif had placed on record that an issue as to 2nd plaintiff's right might be raised in the trial of the suit. And secondly, the Code provides no appeal against decisions under Order XXII, Rule 5; and they, therefore, can be attacked in an appeal, such as that before the lower Appellate Court, against the decree. It is argued with reference to Section 105, that such a decision does not affect the decision of the suit, Balabai v. Ganesh 4 Bom. L.R. 980 being relied on. We must respectfully express our, inability to follow the reasoning in that decision; and we need only observe that the order then in question was one under Section 365, now Order XXII, Rule 3, and the decision was given under the former Code, when an order impleading a legal representative was appealable separately. We, therefore, reject this contention.

2. It is then argued that 2nd plaintiff was entitled to be impleaded as 1st plaintiff's legal representative, because he had intermeddled with his estate. There is no ground of appeal to this effect, and we decline to consider this argument also.

3. The second appeal is dismissed with costs.


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