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Sinni Ammal Vs. R.M.P.S. Palaniappa Chettiar (Deceased) and His Legal Representatives - Court Judgment

LegalCrystal Citation
CourtChennai
Decided On
Judge
Reported in102Ind.Cas.118
AppellantSinni Ammal
RespondentR.M.P.S. Palaniappa Chettiar (Deceased) and His Legal Representatives
Cases ReferredPhul Kumari v. Ghanshyam Misra
Excerpt:
civil procedure code (act v of 1908), order xxi, rule 63, order xxii, rule 3 - execution of decree--claim proceedings--suit under order xxi, rule 63--death of party--legal representative brought on record--impleading of party whether enures for second appeal from main decree--pleader--knowledge of vakil, whether knowledge of client. - .....plaintiff having died during the pendency of that suit, an application was made to bring on his legal representatives and notice was served on the defendant's vakil on 17th march, 1926, upon which she had no objection. it is thus indisputable that the defendant's vakil had notice of the death as early as that date, and the only argument which could avail the petitioner is that his knowledge was not equivalent to the knowledge of his client. this was not the attitude which he took up at the previous hearing of the case and i do not think that in any event i can accept it as valid. unless some special reason can be shown to the contrary, the knowledge of a pleader must be taken to be the knowledge of the client. i can, therefore, see no sufficient reason to excuse the delay on the.....
Judgment:
ORDER

Curgenven, J.

1. The plaintiff, a Nattukottai Chetty, sued the mother of the deceased executant of a promissory note and although the suit was dismissed in the first Court, it succeeded in appeal. The mother has brought now Second Appeal No. 1799 of 1923 and seeks to set aside its abatement caused by the original plaintiff's death after obtaining leave to excuse the delay. The plaintiff admittedly died on 29th January, 1924, and the allegation in the affidavit is that when the second appeal was called on 4th August, 1926, the appellant learnt for the first time that the respondent was dead. I heard this case partially in November last and it was then acknowledged by the petitioner's Vakil that in view of certain facts stated in the counter-affidavit, his client must be taken to have had knowledge of the death by virtue of a notice served in certain connected proceedings. Those proceedings arose out of a claim order which was allowed in favour of the defendant and led to a suit (O.S. No. 1062 of 1924 on the file of the Tirupur Munsif's Court and O.S. No. 247 of 1926 on the file of the District Munsif's Court of Erode). The plaintiff having died during the pendency of that suit, an application was made to bring on his legal representatives and notice was served on the defendant's Vakil on 17th March, 1926, upon which she had no objection. It is thus indisputable that the defendant's Vakil had notice of the death as early as that date, and the only argument which could avail the petitioner is that his knowledge was not equivalent to the knowledge of his client. This was not the attitude which he took up at the previous hearing of the case and I do not think that in any event I can accept it as valid. Unless some special reason can be shown to the contrary, the knowledge of a Pleader must be taken to be the knowledge of the client. I can, therefore, see no sufficient reason to excuse the delay on the ground of ignorance that the death had taken place.

2. It is then argued that because in the suits in question legal representatives were brought on record, that was equivalent to bringing them on record in the second appeal. In the Privy Council case in Brij Indar Singh v. Kanshi Ram : (1917)19BOMLR866 it was, no doubt, held that when a legal representative was brought on record in a civil revision petition arising out of a suit, that would avail for all subsequent stages in the suit, and, of course, the same would hold good in the case of an appeal. Reference has also been made to Phul Kumari v. Ghanshyam Misra 35 C. 202 : 7 Cri.L.J. 36 : 12 C.W.N. 169 : 10 Bom. L.R. 1 : 5 A.L.J. 10: 17 M.L.J. 618; 14 Bur. L.J. 41 : 35 I.A. 22 for the contention that a suit filed upon the allowance of a claim petition is in the nature of an appeal from that petition. Putting theses two decisions together, it is argued that to bring in legal representatives in a suit arising out of a claim petition filed in the execution of a decree amounts to bringing them on record in a second appeal from that decree. I cannot assent to this proposition. A suit arising out of a claim petition, although it may operate in substance as an appeal against the order in the petition, is, formally speaking an entirely independent proceeding, and bears no analogy from the point of view of procedure to a revision petition, or to an appeal preferred against a decree.

3. I find no substance accordingly in this argument.

4. Civil Miscellaneous Petitions Nos. 2681-2683 are accordingly dismissed with one set of costs.


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