1. This is an application for substituting one Sm. Anima Basu in the place and stead of one Deba Brata Basu, deceased, in the record of an appeal which has been filed by the appellant-petitioner.
2. The facts of the case are rather peculiar. The petitioner before us is the Institute of Chartered Accountants. Deba Brata Basu was himself a Chartered Accountant and was entitled to take in Articled Clerks for purposes of training. It appears that he did take an Articled Clerk of the name of Prasanta Kumsr Dutt and received from him by way of premium a sum of Rs. 2,000/-. The agreement which was enlered into between Deba Brata Basu and Prasanta Kumar Dutt did not ccntain any stipulation that the said sum of Rs. 2,000/- would have to be refunded to the Articled Clerk, as required under the conditions incorporated in Form L, prescribed by Rule 36 of the Rule's framed by the Institute in exercise of the powers conferred on them by Section 30(2)(j), Chartered Accountants Act, 1949.
It appears that when the agreement was sent to the Institute for registration, as required by Rule 36, the Institute refused to register it on the ground that the premium charged by a Chartered Accountant from his Articled Clerk could not be retained and that the agreement must contain a stipulation for a refund, as prescribed in Form L for agreements to be used in the case of Articled Clerks who are majors. Thereafter, Deba Brata Basu brought the suit out of which the present appeal arises, asking for a variety of declarations. He prayed for a declaration that the agreement was valid, a further declaration that the refusal of the pet'ticn^r before us to register the deed of Articles waswrongful, still another declaration that the Articled Clerk should be registered and should be deemed to have been registered in the books of the petitioner as from the date of the agreement and for certain other incidental reliefs. The Articled Clerk Prasanta Kumar Dutt was defenaant 2 in the suit.
3. The suit succeeded and it appears from a copy of the decree which has been set out in the paper-book that the declarations asked for by the plaintiff were given. In addition, there was an injunction restraining the petitioner 'from disallowing the plaintiff to charge pre-mium from the defendant Prasanta Kumar Dutt,' and since the suit succeeded, there was also a decree for costs against the petitioner. Thereafter, the petitioner preferred an appeal to this Court which is penoing; but, since then, the plaintiff Deba Brata Basu has died. Ths present application, as I have already stated, is for the substitution of the widow of Deba Brata Basu in his place and stead in the record of the appeal in order that the appeal may be prosecuted as against the party, so substituted.
4. It appears to Us that there is no basis on which the widow could be substituted for the deceased plaintiff in a case of the present description. The rights regarding which Deba Brata Basu asked for and obtained declarations were rights entirely personal to him, being incidental to the profession he was practising and it is impossible to see how any right to sue in regard to them or any liability to be sued has devolved upon his widow. Mr. Deb, however, contended before us that although the rights as regards the personal acticn were not surviving and had not devolved upon the widow, still there was a decree for costs which was a decree to the benefit of the estate left by Daba Brata Basu and in regard to that dfcrec at least, there had been a transmission of interest. He contended further that the injunction granted by the learned trial Judge, restraining the Institute from disallowing the plaintiff to charge a premium from the Articled Clerk, had benefited the estate of Deba Brata Basu by authorising it to retain the amount of premium received and that again, it was contended, was a right in respect of property which was capable of devolution and had devolved.
The principal argument of Mr. Deb, however, was that although, so long as a case was pending, the death of a plaintiff in a personal action would terminate the proceeding altogether and there would be nothing that could devolve on his legal representatives, still, the position would be different if the death took place after a decree in the plaintiff's favour, in which case the rights would no longer be rights personal to the plaintiff in his individual capacity, but rights merged in the decree. In such a case, if the defendant elected to appeal, he could properly implead the legal representatives of the plaintiff upon his death, because, in such a case, the legal representative would not be defenaing any personal right of the deceased person, but would be defending the right merged and embodied in the decree, so that he might retain the benefits under it.
There have been cases before the various Courts where it hos been said that after a causs of action has merged into a decree, the posit on is different from that in a case where the death of a plaintiff or a defendant in a person 1 action takes place during the pendency of the suit. But those are cases where the decree relates tothe principal subject-matter of the litigation or the cause of action, so to say. The present case, in my view, is entirely different. Here, Mr. Deb rightly conceded that there could not be any right of action against Deba Brata Basu's widow in so far as the declarations relating to the validity of the deed of Articles were concerned. The practical question as between the petitioner and the legal representative of Deba Brata Basu is obviously the question of costs, but although it might, to outward seeming, appear as it the petitioner was seeking to prosecute the appeal only on the ground of costs, it was contended before us that, even hereafter, the appeal would continue to be an appeal covering the whole cause of action, although as against the plaintiff's widow, the only relief which could legally be asked for and obtained in fact, would be a relief against the decree for costs. I am not prepared to accede to that argument.
If, instead of the suit being decreed, it had been dismissed and Deba Brata Basu and died after preferring an appeal, it is not even arguable that the widow cculd have claimed to be substituted in the place of Deba Brata Basu as the appellant and to proceed with the appeal. Mr. Deb, however, contended that such a case would be different from the one we had before us, because in the case contemplated, the widow would be seeking to prosecute the original cause of action. I do not see that there can be any difference according as the deceased was the plaintiff or the defendant. The clear pcsition is that the suit was on a cause of action entirely personal to Deba Brata Basu and Deba Brata Basu having died, the right to sue has completely disappeared and has not devolved on anybody. It is true that the litigation which Deba Brata Basu commenced has produced a decree for costs in favour of his estate and that decree is one which is to the prejudice of the petitioner. It is also true that if the appeal succceds as against defendant 2 and it be ultimately held that the Institute was right in refusing registration and that the learned trial Judge was wrong in decreeing the suit, the petitioner would still remain liable to pay the costs. An anomaly of that kind seems to be inherent in personal actions.
But the mere fact that a party may unfortunately be consigned to an anomalous position of that character can be no ground for holding that any right to sue or liability to be sued devolves upon the representatives of a deceassd party in a personal action. If, for example, the plaintiff in such an action fails and a decree for costs is passed against him and thereafter he dies, his representatives cannot prosecute an appeal in crder to get rid of the decree for costs, as Mr. Deb himself conceded. The anomaly in such a case is not of a different kind from the anomaly which might arise in the present case, if Mr. Deb's client succeeded in the appeal.
5. Apart from the order for costs, the other part of the decree on which Mr. Deb relied was the order for an injunction, restraining the petitioner Institute from disallowing the plaintiff to charge a premium, since charging a premium in the first instance is not forbidden either by the Act or by the Rules; it is 'prima facie' not clear what this part of the decree means, but, read along with the judgment, it appears to mean that the Institute would be restrained from insisting on a refund of the amount. Mr. Deb contended that the effect ofthat restraint imposed on the Institute was that the plaintiff's estate would be entitled to retain the money and since the widow was going to get the estate with the money included in it, the liability to be sudd in respect of it had devolved on her, with the result of making her, to that extent at least, the legal representative of the plaintiff for the purposes of the appeal. To my mind, that contention is wholly untenable. The money does not belong to the Institute and the Institute has appealed, not to recover the money but only to establish its right to enforce a particular rule of professional conduct on the plaintiff.
I do not therefore see what right to sue the Institute ever had concerning the money or what right to sue in respect of it has suivived in its favour against the widow. Nor do I see that the effect of the injunction will be to enable the plaintiff's estate to retain the money as against the person who paid it, between whom and the plaintiff there was no issue concerning it in the suit. The question of the right to the money was not involved in the suit at all, nor is any such question involved in the appeal and, in any event, it is a question between the plaintiff and defendant 2 who did not even appear and did rot claim it. In my opinion, it is wholly impossible to hold the widow to be the legal representative of the plaintiff for the purposes of the appeal on the basis of the injunction.
6. It was not contended before us that the absence of a representative of the plaintiff would invalidate the entire appeal. The principal declaration with which the Institute is concerned is a declaration granted in favour of defendant 2 to the effect that he should be registered and should be regarded as being registered in the books of the petitioner from the first day of April, 1950. That is a question entirely between the Institute and the Articled Clerk and it was admitted before us that that question could be decided as between there two parties even in the absence of any represetative of the deceased plaintiff. A right to sue has therefore survived as against defendant 2 alone.
The difficulty about the decree for costs in favour of the plaintiff, however, remains and it cannot, it seems, be solved by recourse to Order 41, Rule 33 of the Code, if the appeal succeeds. Fortunately, Mr. Das on behalf of the widow came forward to solve it by giving an undertaking that in case the Institute succeeded in its appeal and obtained a reversal of the declaration which had been given in favour of the Articled Clerk, the widow, as the representative of the plantiff Deba Brata Basu, would abanden the decree for cos's and would not seek to enforce it. That undertaking can properly be given in the present application, inasmuch as although not substituted in the appeal and not going to be substituted, the widow is a party at least to this application, and the undertaking can be made a part of the records of the appeal. The under-taking which Mr. Das is giving to this Court on behalf of the widow of Deba Brata Basu. Sm. Anima Basu, is subject only to the condition that the appeal shall not fail, but if the appeal succeeds, it would not be subject to any other condition.
7. In the result, this application is dismissed. The undertaking given by the widow will be recorded and made part of the records of the appeal, but there will be no order forcosts, so far as the present application is concerned.
8. I agree.