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Peetha Swamigadu and ors. Vs. Chelasani Ramachandrayya - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in120Ind.Cas.77
AppellantPeetha Swamigadu and ors.
RespondentChelasani Ramachandrayya
Cases ReferredPerumal Pillai v. Perumal Chetty
Excerpt:
civil procedure code (act v of 1908), order xxii, rule 4 - death of judgment-debtor in mortgage suit after preliminary decree--suit, whether abates. - .....116 : 28 l.w. 164 : (1928) m.w.n. 434 : a.i.r. 1928 mad. 914 : 55 m.l.j. 253 : 51 m. 701, order xxii, rules 3 and 4 do not apply to the case of death of a party after preliminary decree and that it is order xxii, rule 10, civil procedure code, which applies. the reference made to the full bench in that case was whether order xxii, rules 3 and 4, civil procedure code. apply to cases of death after the passing of a preliminary decree and the opinion of the full bench was, 'we must answer this reference by saying that, in our opinion, order xxii, rules 3 and 4 do not apply to the present state of circumstances. ' no doubt the particular case referred to the full bench was the death of the plaintiff under order xxii, rule 3, but the application of both rules 3 and 4 was referred and the.....
Judgment:

Walsh, J.

1. The plaintiff in this case obtained a preliminary decree in a mortgage suit against four defendants on 15th March, 1924. The first and second defendants died in January and April 1925 respectively. The plaintiff applied on 29th July, 1926, to add the present petitioners as legal representatives of defendants Nos. 1 and 2. After notice was given, the Court passed an order adding them. The petitioners afterwards put in an application for setting aside this order and it was set aside. Subsequently on an application dated 18th January, 1927, an order was passed setting aside the abatement against the petitioners and adding them as defendants. Against this order the petitioners who have been added as legal representatives of defendants Nos. 1 and 2 file this revision petition.

2. A preliminary objection has been raised that in view of the Full Bench ruling in Perumal Pillai v. Perumal Chetty 112 Ind. Cas. 116 : 28 L.W. 164 : (1928) M.W.N. 434 : A.I.R. 1928 Mad. 914 : 55 M.L.J. 253 : 51 M. 701, Order XXII, Rules 3 and 4 do not apply to the case of death of a party after preliminary decree and that it is Order XXII, Rule 10, Civil Procedure Code, which applies. The reference made to the Full Bench in that case was whether Order XXII, Rules 3 and 4, Civil Procedure Code. apply to cases of death after the passing of a preliminary decree and the opinion of the Full Bench was, 'We must answer this reference by saying that, in our opinion, Order XXII, Rules 3 and 4 do not apply to the present state of circumstances. ' No doubt the particular case referred to the Full Bench was the death of the plaintiff under Order XXII, Rule 3, but the application of both Rules 3 and 4 was referred and the decision of the Full Bench was as regards both points. There is also no distinguishable reasoning between cases under Rule 3 and under Rule 4. I must hold, therefore, following the Full Bench rulings, that there was no abatement in this case, and so, that no application was necessary to set it aside, and that the matter fell under Order XXII, Rule 10. The revision petition must, therefore, be dismissed on these preliminary grounds with costs.

3. I must observe that the lower Court passed an order after hearing the parties adding the present petitioner as legal representatives of defendants Nos. 1 and 2 and it is far from clear how this order came to be set aside and a fresh order ultimately passed which is the subject of the revision now. Had this revision petition been preferred against the first order it would have been long out of time.


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