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Natesa Pillai Vs. Kannammal and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in78Ind.Cas.64
AppellantNatesa Pillai
RespondentKannammal and ors.
Cases ReferredDokoju Subbarayadu v. Musti Ramasasu
Excerpt:
civil procedure code (act v of 1908) order xxii section 3 - death of plaintiff after preliminary decree--legal representative not brought on record--abatement--subsequent application to pass final decree. - .....on account of his absence.4. as he did not get himself brought on the record at that time, the suit abated under order xxii, rule 3 of the code of civil procedure upon six months expiring after the plaintiff's death; and as he did not apply subsequently to have the abatement set aside, the present application, presented on october 10th, 1918, is out of time and incompetent.5. it is true that the district munsif erroneously held that the suit had not abated because the plaintiff's death occurred between the passing of the preliminary and the final decrees. but this court has held in lakshmi achi v. subbarama aiyar 29 ind. cas. 142 : 39 m. 488 : 2 l.w. 408 : 88 m.l.j. 491; (1916) m.w.n. 827 : 17 m.l.j. 825, that the suit is continued till the stage of final decree is reached : see also.....
Judgment:

1. The appellant claims to be the legal representative of the plaintiff, who obtained a preliminary decree in a mortgage suit in O.S. No. 97 of 1912.

2. The plaintiff admittedly had died before this appellant applied on November 19th, 1915 to be recognised as the heir of the plaintiff and to get a final decree passed.

3. His application was dismissed on February 9th, 1916 on account of his absence.

4. As he did not get himself brought on the record at that time, the suit abated under Order XXII, Rule 3 of the Code of Civil Procedure upon six months expiring after the plaintiff's death; and as he did not apply subsequently to have the abatement set aside, the present application, presented on October 10th, 1918, is out of time and incompetent.

5. It is true that the District Munsif erroneously held that the suit had not abated because the plaintiff's death occurred between the passing of the preliminary and the final decrees. But this Court has held in Lakshmi Achi v. Subbarama Aiyar 29 Ind. Cas. 142 : 39 M. 488 : 2 L.W. 408 : 88 M.L.J. 491; (1916) M.W.N. 827 : 17 M.L.J. 825, that the suit is continued till the stage of final decree is reached : See also Dokoju Subbarayadu v. Musti Ramasasu 63 Ind. Cas. 942 : 42 M.L.J. 807 : 16 L.W. 809 : 80 M.L.J. 202; (1922) M.W.N. 876 : 46 M. 872; A.I.R. (1928) (M.) 287, which is a direct authority for holding that after the abatement of the suit an application to pass a final decree, which is not made within the time provided by law, should be dismissed as time-barred.

6. This Civil miscellaneous second appeal is, therefore dismissed with costs.


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