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Avadau Ammal (Dead) Through Her Legal Representative Sundayee Ammal Vs. Krishna Chetti - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in110Ind.Cas.662
AppellantAvadau Ammal (Dead) Through Her Legal Representative Sundayee Ammal
RespondentKrishna Chetti
Cases ReferredPalaniappa Chettiar v. Valliamma Achi
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 4 - appeal from order in execution proceedings--death of appellant--legal representative, whether can be brought on record. - .....appellant died on 16th november 1926 and that the ruling of this court in palaniappa chettiar v. valliamma achi (1) will preclude the maintainability of the appeal, and that the present petitioner's remedy is by way of a fresh execution petition. the ruling in palaniappa chettiar v. valliamma achi 99 ind. cas. 627 ; 50 m. 1 ; 51 m.l.j. 745 ; (1926) m.w.n. 981 ; a.i.r. 1927 mad. 184 ; 25 l.w. 354 did not relate to the case of an appeal against an order in execution, and there are obvious difficulties, e.g., questions of limitation, the maintainability of successive applications etc., which will arise if the ruling is applied to cases of appeal.we are not prepared to extend the application of the ruling to the present case and see no reason why the ordinary procedure relating to appeals,.....
Judgment:
ORDER

Respondent contends that, as this is an appeal in a matter in execution the appeal became incompetent when appellant died on 16th November 1926 and that the ruling of this Court in Palaniappa Chettiar v. Valliamma Achi (1) will preclude the maintainability of the appeal, and that the present petitioner's remedy is by way of a fresh execution petition. The ruling in Palaniappa Chettiar v. Valliamma Achi 99 Ind. Cas. 627 ; 50 M. 1 ; 51 M.L.J. 745 ; (1926) M.W.N. 981 ; A.I.R. 1927 Mad. 184 ; 25 L.W. 354 did not relate to the case of an appeal against an order in execution, and there are obvious difficulties, e.g., questions of limitation, the maintainability of successive applications etc., which will arise if the ruling is applied to cases of appeal.

We are not prepared to extend the application of the ruling to the present case and see no reason why the ordinary procedure relating to appeals, when an appellant dies should not apply.

We repel the objection. The trial Court has held that the petitioner is the legal representative of the deceased appellant. We allow the petition.


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