Skip to content


Raja Srimathu Muthuvijaya Raghunatha Doraisingam Vs. N.A. Swaminathan Chettiar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in137Ind.Cas.319
AppellantRaja Srimathu Muthuvijaya Raghunatha Doraisingam
RespondentN.A. Swaminathan Chettiar and ors.
Cases ReferredSant Singh v. Gulab Singh
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 11 - appeal, abatement of--abatement against one of several joint decree-holders--whether appeal abates against all. - - the correct view, with all respect, is clearly laid down in srinivasulu chetti v......40 mad. 23 (f.b.), it has been ruled that where persons litigate bona fide in respect of a common right the suit will operate as res judicata against others enjoying this common right, even though they have received no notice under order i, rule 8 of the suit.6. but here we have a person who has been a party to the suit and has obtained a decree, and it is impossible by analogy to say that his right can be litigated in his absence by other persons on appeal. the correct view, with all respect, is clearly laid down in srinivasulu chetti v. guraviah : air1927mad595 . the appeal must be dismissed, cf. maula bux v. chanan mal 94 ind. cas. 563 : 8 lah. l.j. 134 : a.i.r. 1926 lah. 332 : 27 p.l.r. 250. nor can it be argued that the absence of the 25th defendant is immaterial because the.....
Judgment:

Jackson, J.

1. The short point of this second appeal is whether when the suit abates against one of several joint decree-holders it abates against all.

2. The District Munsif decreed 'that plaintiff and defendants Nos. 6 to 31 be put in possession of the Rajali Kaduvetti fields.' The appeal abated against 25th defendant.

3. The appellant, 1st defendant, wants it declared that the decree-holders have no right to the fields, or to disturb his occupation. Now 25th defendant under the decree gets the right and can oust the 1st defendant. Is it worth while considering whether the remaining defendants have or have not the right?

4. The line of argument is that if these remaining defendants had brought a bona fide representative suit they could have litigated the right of the 25th defendant, and this appeal can go on in his absence on the same line of reasoning. This illustrates the danger of carrying principles applicable to one set of circumstances into another.

5. In Sonachalam Pillai v. Kumaravelu Chettiar 107 Ind. Cas.625 : 51 M. 128 : 27 L.W. 216 : A.I.R. 1928 Mad. 77 : 54 M.L.J. 8 : I.L.T. 40 Mad. 23 (F.B.), it has been ruled that where persons litigate bona fide in respect of a common right the suit will operate as res judicata against others enjoying this common right, even though they have received no notice under Order I, Rule 8 of the suit.

6. But here we have a person who has been a party to the suit and has obtained a decree, and it is impossible by analogy to say that his right can be litigated in his absence by other persons on appeal. The correct view, with all respect, is clearly laid down in Srinivasulu Chetti v. Guraviah : AIR1927Mad595 . The appeal must be dismissed, Cf. Maula Bux v. Chanan Mal 94 Ind. Cas. 563 : 8 Lah. L.J. 134 : A.I.R. 1926 Lah. 332 : 27 P.L.R. 250. Nor can it be argued that the absence of the 25th defendant is immaterial because the interests of the defendants are separable as in Sant Singh v. Gulab Singh 114 Ind. Cas. 417 : 10 Lah. 7 : A.I.R. 1928 Lah. 572 : 30 P.L.R. 453 (F.B.). In the decree 25th defendant is not given a separate interest apart from that of the other defendants, and his right cannot be cut up in his absence.

7. The appeal falls and is dismissed with costs.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //