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Radhakrishna Aiyar Vs. Babu Srinivasa Aiyar - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in93Ind.Cas.831
AppellantRadhakrishna Aiyar
RespondentBabu Srinivasa Aiyar
Cases ReferredMannem Seshadri Reddi v. Putta Venkata Reddy
Excerpt:
civil procedure code (act v of 1908), section 146. scope of - purchaser of portion of subject-matter of suit--right to continue appeal filed by vendor. - .....is claiming an interest in a portion of the subject-matter of the suit is entitled to continue an appeal filed by his vendor. in this case the appellant's vendor filed an application for leave to appeal in forma pauperis on 10th july 1923 with a memorandum of appeal. he died on 24th september 1923 and on 5th december 1923 the appellant made an application to be made a party appellant for the purpose of prosecuting the second appeal. the application to appeal in forma pauperis was dismissed and the appellant was directed to pay the court-fee, and a month's time was granted him for the purpose. he has paid the court-fee. his application for stay of proceedings in c. m. p. no. 2221 of 1923 was dismissed by mr. justice jackson on the ground that the appellant had no right to continue the.....
Judgment:

1. The only point in this Letters Patent Appeal is whether a person who is claiming an interest in a portion of the subject-matter of the suit is entitled to continue an appeal filed by his vendor. In this case the appellant's vendor filed an application for leave to appeal in forma pauperis on 10th July 1923 with a memorandum of appeal. He died on 24th September 1923 and on 5th December 1923 the appellant made an application to be made a party appellant for the purpose of prosecuting the second appeal. The application to appeal in forma pauperis was dismissed and the appellant was directed to pay the Court-fee, and a month's time was granted him for the purpose. He has paid the Court-fee. His application for stay of proceedings in C. M. P. No. 2221 of 1923 was dismissed by Mr. Justice Jackson on the ground that the appellant had no right to continue the appeal which was filed by his vendor. The learned Judge distinguished the case of Muthiah Ghettiar v. Lodd Govinda Doss-Krishna Doss 69 Ind. Cas. 337 : 41 M.L.J.316 : (1921) M.W.N. 649. from this case on the ground that the appellant wanted to continue the appeal already filed by his vendor and not that he wanted to file another appeal. Section 146, C. P.C., says 'Where any proceeding may be taken or application made by or against any person, then the proceeding may be taken or the application may be made by or against any person claiming under him.'

2. Mr. M.S. Venkataramier for the respondent contends that Section 146 applies to the filing of a fresh suit or a fresh appeal and not for continuing a suitor appeal pending. We are unable to accept this contention. If the appellant is entitled to present another appeal to this Court against the decree passed against his vendor, we fail to see why he should not be allowed to continue the appeal which was filed by his vendor. The proper interpretation of Section 146 is a person who is entitled to make an application or file an appeal which could, have been made or filed by another under whom he claims but which has not been made or filed is also entitled to continue the application or appeal which has been made or filed by such person when that application or appeal is not properly prosecute or when such person dies before the application or appeal is disposed of.

In this connection we may refer to the decision in Mannem Seshadri Reddi v. Putta Venkata Reddy A, I. R. 1924 Mad. 709. We, therefore, hold that the appellant is entitled to prosecute the appeal filed by his vendor and we set aside the order of the learned Judge, and direct that the appellant be brought on record in the second appeal.

The costs of this appeal will be costs in the second appeal.


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