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H.K. Sayyad Gulam Gouse Vs. Dost Mohammad Khan Sahib and anr. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtChennai
Decided On
Reported inAIR1925Mad244
AppellantH.K. Sayyad Gulam Gouse
RespondentDost Mohammad Khan Sahib and anr.
Cases ReferredParameswamn Munpee v. Narayanan Nambudri
Excerpt:
- order1. parameswara munpee v. narayanan nambudri (1917) 40 mad. 110 is a direct authority for the view that a suit once instituted by two or more plaintiffs duly autherised, under section 92, civil procedure code does not abate, in consequence of one of the plaintiffs dying, during the continuance of the suit.2. it seems to us that the ease of one of two or more appellants dying after the filing of an appeal against a decree in a suit of the nature referred to in section 92 is i an a fortiori case of abatement, not resulting from the death of a party.3. the observations in chhabile rum v. durga prasad (1915) 37 all. 296 to the effect that it is necessary that there should be two persons interested in the trust and holding the advocate-general's sanction for carrying on the litigation,.....
Judgment:
ORDER

1. Parameswara Munpee v. Narayanan Nambudri (1917) 40 Mad. 110 is a direct authority for the view that a suit once instituted by two or more plaintiffs duly autherised, under Section 92, Civil Procedure Code does not abate, in consequence of one of the plaintiffs dying, during the continuance of the suit.

2. It seems to us that the ease of one of two or more appellants dying after the filing of an appeal against a decree in a suit of the nature referred to in Section 92 is I an a fortiori case of abatement, not resulting from the death of a party.

3. The observations in Chhabile Rum v. Durga Prasad (1915) 37 All. 296 to the effect that it is necessary that there should be two persons interested in the trust and holding the Advocate-General's sanction for carrying on the litigation, have not been accepted by the Bench, which decided the case in Parameswaran Munpee v. Narayanan Nambudri (1917) 40 Mad. 110 and in view of the strict interpretation which has been put upon the oppression ' instituted' by Sir Lawrence Jenkins in Danes Haji Mahammad v. Jainudin (1906) 30 Bom. 603, we do not think that they should be followed. Alagappa v. Muthiah (1918) 41 Mad. 237 is an additional authority for the correctness of the view taken by this Court in Parameswamn Munpee v. Narayanan Nambudri (1917) 40 Mad. 110 we have decided to follow : (vide the judgment of Sadasiva Aiyar, J., at pp. 239-240). The present application does not come within the scope of Order 22, Rule 3(1), Civil Procedure Code, which deals only with applications made by legal representatives of deceased plaintiffs. Rule 3(2) deals only with the result of such applications not being made, within the time limited by law on the interest of the deceased plaintiff.

4. This application is dismissed with costs. The regular appeal will be posted for hewing in duo course.


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