1. This petition, C.R.P. No. 284, is by the minor sons of Pendyala Subba Rao and is a sequel to Order Rule P. No. 1605 of 1932. In C.M.P. 4021 petitioners apply to be recognized as Subba Rao'a legal representatives and this petition is granted. Subba Rao filed C.R.P. 1605 in this Court to vacate a decree which had been passed against him for Rs. 628. The decree had been passed on an award and no appeal lay against it. That is why Subba Rao had to come by way of a petition to the High Court under Section 115, Civil P.C. This Court set aside the decree and directed the trial Court to make a fresh decree after giving Subba Rao an opportunity to substantiate his objections to the award. That order was passed on 10th May 1934. But when the trial Court took up the suit for retrial, it discovered that Subba Rao had died on 7th January 1934, a fact which of course the High Court did not know when it passed orders in C.R.P. No. 1605.
2. The trial Court without bringing on the present petitioners as Subba Rao's representatives held that the High Court's order was not valid and declared that the decree already made in the suit must stand. C.E.P.No. 284 is to set aside this order and to affirm the order passed in C.E.P.No. 1605 and to direct the trial Court to proceed to determine the suit as directed by that order. In my opinion the order made by the trial Court is right and the decree already passed in the suit must stand. It seems to me that the matter is free from all doubt. Ninety days after Subba Rao's death, that is to say on 7th April 1934, Subba Rao's petiiiion abated since his legal representatives; did not apply to be brought on the record and to continue that petition. After 7th (April there was no petition before the high Court and its order passed in ignorance of the fact of abatement was a nullity. Order 22, Rule 3 and 4 govern the case. Where the sole plaintiff in a suit dies, the Court shall cause his legal representative to be made a party and shall proceed with the suit. But the Court cannot do this except upon an application made to it and if no application is made within the time allowed by law the suit shall abate. Article 176 of Schedule 1, Limitation Act, prescribes ninety days as the time in which an application of this kind must be made. The C.E.P. No. 1605 therefore abated ninety days after 7th January. Elaborate and skilful arguments have been addressed to me by the learned Counsel for these petitioners. He contends first that in the case of petitions under Section 115, Civil P.C., it does not matter whether the parties are dead or alive at the time the order is passed, since in such case the matter is entirely one between the High Court and the trial Court. To admit such a principle would be to deny the fundamental right of parties to a litigation to be heard. Learned Counsel's second argument is that Order 22 does not apply to proceedings Under Section 115, and therefore there can be no abatement in the case of a petition filed under that auction. But if Order 22 does not apply, the natural consequence is that on the death of a party the petition abates at once. Moreover, in this Court, at any rate, and in the Calcutta High Court Annadamoyi Dasi v. Rudra Mahanti (1913)18 C.L.J. 141, Order 22 has always been applied to petitions under Section 115. Still another argument is that there have been cases where decrees passed after the death of a party have not been treated as a nullity. And the cases have been cited to me. But in none of them had the suit or other proceedings abated at the time of the decree. In all of them there was at the time of the decree a case before the Court which it was necessary to determine and which could not be dismissed forthwith. If in these cases the Court had become aware of the death of the deceased party, it could not have proceeded forthwith to pass a decree. It would have had to adjourn the case till the expiration of the time allowed by law for an application to bring on the legal representative of the deceased. In the present case the order of the High Court is a nullity because at the time it was passed there was no case before the Court at all. For a similar case, Amareangji v. Desai Umed (1925) 12 A.I.R.Bom 290
3. Vallayan Chetti v. Mahaliuga Iyer (1916) 3 A.I.R. Mad 574 and Suryanarayana v. Joga Rao : AIR1930Mad719 are cases where an unsuccessful appellant attempted to have the appellate decree set aside on the ground that a respondent had died before decree. It was held that in the interests of justice it was not advisable to give an unsuccessful litigant a right to argue his case more than once merely on the ground that one of the parties to the proceeding was dead at the time of hearing. In 33 Mad 1675, the plaintiff in the suit died on the morning of the day on which the suit was heard and decided. Sixteen years later, the plaintiff's successor in title brought a similar suit on the same cause of action on the footing that the decree in the former suit was a nullity. It was held that the second suit was barred. Benson and Sankaran Nair JJ. apparently considered that in spite of the decree having been made, the deceased plaintiff's heir could at once have brought the fact of plaintiff's death to the notice of the Court which tried the suit and could have applied to have the abatement set aside. Those learned Judges applying Order 22, Rule 9 held that this was his only remedy and since he had not taken it he was not entitled to bring a fresh suit on the same cause of action. Incidentally, they observed that a decree passed in favour of a deceased plaintiff is not void when the record does not show the fact and time of death. In Tota Ram v. Kundan (1928) 15 A.I.R. Lah 784 one of the defendants had died before the decree. The learned Judges who decided the appeal of the defendants held that since the suit had not abated as against the deceased defendant at the time of the decree, the decree could be set aside and the suit ordered to be retried in the presence of his legal representative from the stage it had reached immediately before the date of his death. But they considered this course unnecessary as the legal representative had been brought on record in the appeal itself and his introduction at that stage was an introduction for all stages and moreover all the evidence touching the question in issue in the appeal had been produced before the defendant died. Noai Chowkidar v. Official Trustee, Bengal : AIR1929Cal527 was a case where the appellant died 29 days before the appellate decree. It was similar to the case now Under consideration in this respect that the decree on appeal was in favour of the deceased; but dissimilar in what I consider to be the decisive point, namely that the appeal had not abated at the time of the appellate decree: Noai Chowkidar v. Official Trustee, Bengal : AIR1929Cal527 .
4. This Court has not gone the length of Tota Ram v. Kundan (1928) 15 A.I.R. Lah 784 in holding that a decree made against a deceased defendant is valid provided that it appears that his legal representative is not prejudiced by the decree. On the contrary, in Bnlaramier v. Vasudevan (1929) 16 A.I.R. Mad 802 this Court has held that such a decree has no validity in law. In that case, which was a civil revision petition, ninety days had not elapsed from the death of the respondent when the decretal order was passed. And this circumstance was regarded as in itself sufficient to invalidate the decretal order, it being held that during the time the legal representative may be brought on record, the action is in a state of suspense and that during that time no valid act which involves decision on the merits of any part of the action can be done by the Court: see also Mohammad Ali v. Allah Ditta (1931) 18 A.I.R. Lah 73. It is hardly necessary to cite authority for the proposition that a decree made after the action has abated as against a deceased defendant is a nullity as against that defendant: Ganga v. Govind Das (1934) 21 A.I.R. Lah 442. In the result I hold that the learned District Munsif was right in refusing to obey the order made in C.R.P. 1605 of 1932 when he became aware that that order was passed without jurisdiction and was a nullity being passed after the petition had abated and without the legal representatives of the petitioner being brought on the record, This C.R.P. dismissed with costs. (His Lordship then dealt with C.M. Ps. 4022, 4023 and 4024 and dismissed them.)