Suppu Nayakan v. Perumal Chetty — 1916 DIGILAW 128 (MAD)

JUDGMENT Sadasiva Aiyar, J. 1. The appellant was the plaintiff in O.S. No. 178 of 1911 on the file of the District Munsifs Court of Dindigal. The only defendant in the suit died in March 1912. On the 15th April 1912, the plaintiff applied to bring in the defendants son Peru trial Chetty on the record as the defendants legal representative. He failed to mention the order and rule of the Civil Procedure Code, under which the application was filed. On the 23rd April 1912 the Court returned the application to him for amendment giving him three days time to take it back, amend and represent it. The District Court transferred the suit about the end of April 1912 to the District Munsifs Court of Melur for disposal. The records were sent away from the District Munsifs Court of Dindigal accordingly to the District Munsifs Court of Melur but retaining the above application (which was not taken back by the plaintiff for amendment and re-presented). The other records were sent away from the District Munsifs Court of Dindigal on 25th May 1912 and the suit was numbered 0. Section No. 634 of 1912 on the file of the District Munsifs Court of Melur. The plaintiffs application which he had been ordered to take back seems to have been sent to the District Munsifs Court of Melur separately in October 1912. Then on the 13th November 1912 the plaintiff put in a petition in the Melur District Munsifs Court to excuse the delay in taking, back, amending and representing the application. The petition was ordered without notice having been sent to the respondent (the deceased...defendants son) and he was brought on the record and was designated as the 2nd-defendant in the case. When summons was served on him, he contended that the suit had abated in September 1912 on the expiry of six months from his fathers death, that the plaintiff had no right after the suit had abated to put in any application in the suit other than an application to set aside the abatement as the suit must be taken to have come to an end on the abatement and that the order of the Court extending time for representing the application to bring in the legal representative and directing the legal representative to be brought on record was passed without jurisdiction. Thereupon an additional issue was framed in the suit, namely, "Whether the suit should abate for the reasons given in the written statement of the2nd defendant"? 2 The District Munsif decided this issue in the 2nd defendants favour and dismissed the suit with costs on 17th March 1913. 3 The plaintiff then filed C.R.P. No. 513 of 1913 under Section 115, C. Procedure Code in this Court. Mr. Justice Ayling dismissed the revision-petition on the ground that the decree of the District Munsif was appeal able and hence no petition lay under Section 115 of Act V of 1908 to the High Court. 4. This Letters Patent Appeal is against the above order of the learned Judge, the grounds of appeal being: 2. The learned Judge erred in holding that the order sought to be revised was a decree and hence appeal able. 3. The learned Judge failed to n6te that the order in question did not conclusively determine any of the rights of the parties in controversy in this suit and as such was not a decree within the meaning of the Civil Procedure Code of 1908. 4. The learned Judge should have interfered at least on the ground that there is no defence to the contentions of the petitioner and that any appeal to the District Court would only multiply proceedings. 5. The fourth ground cannot be accepted as where there is an appeal to the District Court and a second appeal to the High Court, Section 115 cannot apply. See Visvanathan Chetty v. Ramanathan Chetty (1910) I.L.R. 24 M. 646 and Subbiah Pillai v. Kailasam Pilial (1914) 1 L.W. 905. 6. As regards the other two grounds there are no doubt observations in certain decisions of the Calcutta and Allahabad High Courts see Hamida Bibi v. Ali Hussen Khan (1895) I.L.R. 17 A. 172, and Walayat Hussain v. Ramlal (1914) 12 A.L.J. 1113 which support the appellants contention, but on the other hand this Court has hold in Subbayya v. Saminadayyar (1895) I.L.R. 18 M. 496, s.c. 5 M.L.J. 63, and in Meenatchi Achi v. Anantanarayana Aiyar (1902) I.L.R. 26 M. 224, following Bhikkaji Ramachandra v. Purshotam (1885) I.L.R. 10 B. 220 that an order declaring a suit to have abated is a decree from which an appeal lies. The appellants learned vakil Mr. The appellants learned vakil Mr. K.S. Jayarama Aiyar has called our attention to the fact that whereas under Section 366 of the old Code, when a plaintiff died the Court had to pass an order that the suit shall abate if no application is made within the time limited by law, etc., under Order 22 Rule 3 of the New Code the suit abated without a formal order of the Court that the suit shall abate. But I do not think that this makes any difference in principle. Under the old Code, Section 368, when a defendant died and the right to sue survived but the plaintiff failed to make a proper application within the period prescribed, the suit abated without any formal order. It was only to make the wording of the provision prescribed for the two sets of circumstances to conform with one another as far as possible that Order 22 Rule 3 has used the words "the suit shall abate" instead of the expression in tin old. Section 366 "the Court may piss an order that the suit shall abate." The practice in the Ma-ins Courts so far as I know is that when the suit has abated, the Court also ipso facto dismisses the suit, that if it takes it of from the file of the pending suits. Though Order 22 Rules 3 and 4 do not expressly state that the abatement of a suit is of the same effect as the dismissal of the suit, I think that that is the meaning of the legislature and in Subbayya v. Saminada Ayyar (1895) I.L.R. 18 M. 496, s.c. 5 M.L.J. 63 there was a decree dismissing the suit drawn up on the abatement of the suit and against that decree the learned Judges hold that an appeal lay. Again the analogous Order 22 Rule 8 (old Section 370) states in Clause (1) that the insolvency of a plaintiff shall not cause the suit to abate if the assignee or receiver wishes to continue the suit. And then in Clause (2) it if said that if the assignee or receiver neglects or refuses to continue the suit and the defendant applies for the dismissal of the suit, the Court may make an order dismissing the suit. And then in Clause (2) it if said that if the assignee or receiver neglects or refuses to continue the suit and the defendant applies for the dismissal of the suit, the Court may make an order dismissing the suit. Thus, the abatement of the suit and the passing of an order which has the force of a decree dismissing the suit are treated as closely connected if not identical proceedings. I might, however, suggest that the Rule committee might make it clear by the enactment of a rule that, in cases where suits have abated without the necessity of a formal order, a decree dismissing the suit should be drawn up as on the date of the abatement unless, of course the abatement is set aside by appropriate proceedings. In Subramania Iyer v. Venkataramaier (1914) 31 I.C. 4, myself and Napier, J. held that an order of the Court declaring that the suit has abated owing to the cause of action not surviving was a decree as it determined that the rights of the plaintiff ceased to exist on his death and therefore it fell within the definition of a decree " there being no appeal provided for in the Code from that order as an appeal from an order. See exception (a) to Section 2 Clause (2), Civil Procedure Code." Mr. Jayarama Iyer, however, argued that the definition of a decree in Section 2 Clause 2 applied only where the order disposing of the suit contained an express adjudication on the defences raised by the defendant or the rights set up by the plaintiff, (defences not only on the merits but on technical questions like limitation or res judicata) but that where the adjudication of the suit had proceeded on mere questions of procedure (such as where the suit is dismissed for default etc.) the order is not a decree within the definition. He relied upon several cases decided by the other High Courts for the establishment of this proposition. But as I said before this High Court has held that where the suit is finally determined by the order it is a decree unless it is excepted specially or unless an appeal 13 provided for by the Code itself from such an order as an appeal from an order. But as I said before this High Court has held that where the suit is finally determined by the order it is a decree unless it is excepted specially or unless an appeal 13 provided for by the Code itself from such an order as an appeal from an order. In fact, the New Code when it says that the definition of a decree "shall not include any order of dismissal for default" clearly implies that but for the exception so expressly enacted an order of dismissal for default would be a decree as it determines the rights of the parties with regard to the matters in controversy in the suit. The controversy as to preliminary and final decrees in the Bombay High Court which was set at rest finally by Chanmalswami v. Gangadharappa (1914) I.L.R. 39 B. 339 which was relied on by Mr. Jayarama Aiyar has not much relevancy on this question of the definition of a decree. I therefore hold that Ayling, J., was right in dismissing the revision petition before him. We were asked to interfere finally under Section 15 of the Charter Act, but the power under that section can only be exercised in extraordinary cases and subject to the enactments of the Indian Legislature. I therefore dismiss the Letters Patent Appeal with costs. Moore, J. 7. I agree. The question raised by this appeal is whether the District Munsifs order dismissing the suit on the ground that it had abated under Order 22 Rule 4(3) of the Code of Civil Procedure by reason of the application which had been made under sub Rule (1) of Order 22 Rule 4 of the Code to make the legal representative of the deceased defendant a party, not having been represented within the time fixed by law, is a decree and appeal able as such. 8. In Subbayya v. Swaminadayyar (1895) I.L.R. 18 M. 496, S.C. 5 M.L.J. 63 following Bhikkaji Ramachandra v. Purshotham (1885) I.L.R. 10 B. 220 it was held that an appeal lay against an order rejecting an application under Section 366 of the Code of 1882 to bring on record a person claiming to be the legal representative of a deceased plaintiff and dismissing the suit on the ground that it had abated, and also against the dismissal of the suit. In Bhikkaji Bamachandra v. Purshotham (1885) I.L.R. 10 B. 220 Sargent, C.J. and Bird wood, J., held that an order under Section 366 of the Code of Civil Procedure that a suit do abate virtually a decree within the meaning of Section 2 of Act XIV of 1882 as it disposed of the plaintiffs claim as effectually as if the suit had been dismissed and appeal able. In a recent case, Subramania Iyer v. Venkataramaier (1915) 31 I.C. 4 my learned brother and Napier, J., ruled that an order declaring that a suit had abated owing to the cause of action not surviving was a decree as it determined that the right of the plaintiff ceased to exist on his death and therefore came within the definition of decree in Section 2(2) of the Code of Civil Procedure. 9. I respectfully follow these decisions. It is km the words "the suit shall abate" in Schedule (2) of Order XXII, Rule 3, of the Code of Civil Procedure, have been substituted for the words "the court may make an order that the suit shall abate" which occurred in Section 366 of Act XIV of 1882. 10. The latter words gave rise to a conflict of opinion as to whether an order that a suit shall abate was appealable, the Madras and Bombay High Courts holding that such an order was a decree, and therefore appealable, while the Allahabad High Court took a different view. It is probable, I think, that the alteration in the wording was made in order to give effect to the Madras and Bombay Rulings and bring the language of the two rulings into conformity. Under the present rule it is not necessary to make an order that the suit shall abate. The suit abates ipso facto if no application is made under Schedule (1) of Rule 4 of Order XXII of the Code of Civil Procedure within the time fixed by law, and must be dismissed. 11. Under the present rule it is not necessary to make an order that the suit shall abate. The suit abates ipso facto if no application is made under Schedule (1) of Rule 4 of Order XXII of the Code of Civil Procedure within the time fixed by law, and must be dismissed. 11. As pointed out by my learned brother although Rules 3 and 4 of Order XXII of the Code of Civil Procedure do not expressly stats that the abatement of a suit has the same effect as the dismissal of a suit, this appears to have been the intention of the Legislature upon a suit abating under Rule 3 or Rule 4 of Order XXII of the Code of Civil Procedure, a decree dismissing the suit must follow.