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C. Subramania Iyer Alias Subba Iyer and ors. Vs. Muthu Vaithilinga Mudaliar and ors. - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in44Ind.Cas.987
AppellantC. Subramania Iyer Alias Subba Iyer and ors.
RespondentMuthu Vaithilinga Mudaliar and ors.
Excerpt:
civil procedure code (act v of 1908), order xxii, rules 3, 5 - representatives of deceased party, conflicting claims by, decision on--duty of court--appellate court, order by, effect of--order, whether can be questioned in appeal from final decree. - .....other persons (referred to as plaintiffs nos. 3 to 12) should also be recognised along with him as legal representatives of the original plaintiff.2. this is a question which under order xxii, rule 5. of the code of civil procedure, it was obligatory on the court to decide; but it is clear from the order recorded and the munsif's remarks in his finding dated the 15th october 1915 that he did not determine the question, but simply added all the claimants (plaintiffs nos. 2 to 12) as legal representatives without enquiry or hearing 2nd plaintiff's objections and proceeded with the case.3. when the case came up on appeal, the lower appellate court called for a finding as to who were the proper persons to be added as legal representatives of the original plaintiff, and passed an order adding.....
Judgment:

1. In the First Court, on the death of the original plaintiff, the question arose whether Subramania Iyer (referred to as 2nd plaintiff) alone should be recognised as his legal representative or whether certain other persons (referred to as plaintiffs Nos. 3 to 12) should also be recognised along with him as legal representatives of the original plaintiff.

2. This is a question which under Order XXII, Rule 5. of the Code of Civil Procedure, it was obligatory on the Court to decide; but it is clear from the order recorded and the Munsif's remarks in his finding dated the 15th October 1915 that he did not determine the question, but simply added all the claimants (plaintiffs Nos. 2 to 12) as legal representatives without enquiry or hearing 2nd plaintiff's objections and proceeded with the case.

3. When the case came up on appeal, the lower Appellate Court called for a finding as to who were the proper persons to be added as legal representatives of the original plaintiff, and passed an order adding 2nd plaintiff alone.

4. In our opinion, this order has the effect of removing plaintiffs Nos. 3 to 12 from the suit (except as regards their liability for costs) just as would have been the result of a similar order passed by the Original Court at the proper stage.

5. An order under Order XXII, Rule 5, is not appealable and we do not think it is open to plaintiffs Nos. 3 to 12 to question it by way of appeal against the decree passed by the lower Appellate Court in favour of 2nd plaintiff against the defendant, which decree is not sought to be altered so far as defendant is concerned.

6. The present appeal does not lie and is dismissed with costs.


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