ABDUL WAHAB v. RAMAKRISHNIAH — 1950 DIGILAW 14 (KAR)

( 1 ) THE petitioners before this Court are the respondents in R. A. No. 147 of 44-45 on the file of the First Additional Subordinate Judge, Bangalore. The first respondent herein is one ramakrishnaiah who died on 9-1-1945 when the appeal was pending before the lower Court. The said Ramakrishnaiah filed a suit on 6-11-43 for declaration and possession of the suit schedule properties in the Court of the Munsiff of Dodballapur. The suit was dismissed on 7-11-1944. The said Ramakrishnaiah Tiled an appeal on 3-1-1945 before the District Judge, bangalore and on 19-1-1945 it was reported to the Court that the appellant was dead. The case was adjourned to 29-1-1945 to bring the legal representative on record. I. A. No. 1 was filed on 29-1-1945 to bring one Ramachandriah as the legal representative of the deceased ramakrishnaiah. Notices were ordered on 29-1-1945 to be served by 2s-2-1945. In the meanwhile, on 30-1-1945 the appeal was transferred by the District Judge to the Subordinate judge who issued notices to the respondents and after service the appeal was disposed of by arguments on 30-3-1946 with the result, that the dismissal order of the trial Court was set aside and the suit was remanded by allowing the amendment application of the defendant for fresh disposal according to law. After remand, objections were taken in the trial Court that there was no living plaintiff represented in the suit and that the suit was dismissed as there was no party to prosecute the suit. Against that order, C. R. P. No. 115 of 41-43 was filed. ( 2 ) IT may be observed here that no notices were served on the respondents to give intimation of the L. R. application filed by Ramachandriah with the result that the application was lost sight of by the appellant and the Court. No final orders were passed nor any legal representative brought on record before the appeal was disposed of on merits. In the revision petition above adverted to, the High Court observed that since no orders were passed on the L. R. application which was necessary for the progress of the case, the suit ended in dismissal in the Munsiff's Court and that the mere filing of the petition will not entitle the petitioner to proceed with the suit. In the revision petition above adverted to, the High Court observed that since no orders were passed on the L. R. application which was necessary for the progress of the case, the suit ended in dismissal in the Munsiff's Court and that the mere filing of the petition will not entitle the petitioner to proceed with the suit. That being so, the High Court declined to interfere with the order in revision with an observation that the petitioner may seek his own remedy in other proceedings according to law. The petitioner then filed an application before the First Additional Subordinate Judge (Court of small causes. Bangalore under Sections 151 and 152, Civil P. C. Objections were called for and filed by the defendants on 11-0-1918. The main points urged arc that the petitioner has no locus standi' to maintain the application as he was not a party to the proceedings and the application was belated, it is also stated in the objection statement that the deceased Ramakrishnaiah has left behind him his wife and children and the status of the petitioner also is disputed. The learned subordinate Judge states that the default in not having brought the legal representative on record constituted an error or omission on the part of the Court and on that ground he allowed the application and made, what he calls, a formal order directing Ramachandriah to be brought on record as the legal representative of the deceased appellant. He further directed the lower Court to take the suit on file and dispose it of as directed in the remand order of that Court dated 30-3-1946. In effect, the order on this application constitutes a reversal of the judgment and decree of the Court below which cannot be done under the guise of correction of an error or omission under Sections 151 and 152, Civil P. C. ( 3 ) SRI B. V. Balaji, learned counsel for the petitioners contends that at the time of arguments his party never knew the death of the appellant and the case went on as if the appellant was alive. If, as a matter of fact, the appellant was dead on that date, the judgment and the further proceedings are a nullity. If, as a matter of fact, the appellant was dead on that date, the judgment and the further proceedings are a nullity. The omission to bring the legal representative on record within 90 days from the date of the death of the appellant should automatically operate as abatement of the suit. It cannot be that the legal representative of the appellant could be brought on record more than two years after the death of the appellant and as such, the interference of the lower appellate Court below works prejudice so as to take away the right which is vested in his clients. ( 4 ) SRI B. Neelakanta contends that the legal representative's application was pending in the subordinate Judge's Court and it was not finally disposed of. As it is an omission without disposal, the trial Court has still jurisdiction to rectify the omission; otherwise, the plaintiff will have no remedy and suffers loss and damage. Sri Neelankanta relies upon some cases to substantiate his position. One such is reported in -- 'namdar Chand v. Bansidhar', 1893 All W N 181 (A), wherein similar circumstances arose, the Court held that on the death of one of the defendants, no application to bring the legal representatives was filed, but vakalats were filed on behalf of the legal representatives, with the result that both the parties took part in the further proceedings as if the legal representatives were brought on record though an order to bring the legal representatives was not expressly passed. So, the objection that the legal representative was not brought on record was considered to be a technical one and overruled. ( 5 ) SRI Balaji on the other side, relies upon --'10 Mys L J 269 (B); -- 'badal Khan v. Murtaz', 9 Ind gas 977 (All) (C); -- 'phekhu Tewari v. Bhagwat Lal', AIR 1935 Pat 4 (D) and -- Ro- mesh chandra v. Anthony Penheiro', AIR 1918 Cal 690 (E ). The effect of these decisions is that the suit abates if the legal representative is not brought on record within time. The effect of these decisions is that the suit abates if the legal representative is not brought on record within time. ( 6 ) THE important point for decision is whether the Subordinate Judge who dealt with the appeal was competent under Sections 151 and 152, Civil P. C. , to direct the legal representative to be brought, on record after the disposal of the appeal and alter the suit was dismissed in the trial court when he was not actually sewed with jurisdiction and whether in view of the fact that the judgment; was passed with a dead person on record and if the further proceedings are to be ignored altogether the appellate Judge could have jurisdiction to amend the decree by bringing the legal representative on record. This point, does not appear to be free from difficulty and I feel that, since no other precedent except the All. Weekly Notes above referred to, was quoted before me-during arguments and since there is no other case also of our own High Court bearing specifically on the points raised, it appears desirable to refer the matter to a Bench for a considered ruling on the-point. ( 7 ) THE petition is, therefore, directed to be placed before a Bench for disposal. ORDER n. Balakrishnaiya, J. ( 8 ) SRI Balaji, the learned counsel for the petitioners, urges that the application I. A. No. III which is filed under Section 151, Civil P. C. is not maintainable as the learned Subordinate judge was not seized with the jurisdiction of the appeal at that stage and that the order of the learned Subordinate Judge has the effect of not only setting aside the judgment of his own Court but has also the effect of setting at naught the decree of the trial Court which was passed subsequently in consequence of the original order of remand. The contention of Sri Balaji is not without force. The contention of Sri Balaji is not without force. It is no doubt true that the Courts have inherent powers to review their own orders or correct their own mistakes, but that when the suit is otherwise finally disposed of by the trial court, the appellate Court cannot without an appeal against the disposal of the trial Court interfere under Section 151, Civil P. C. and make an order in the manner in which it is done in this case In I. A. No. III no prayer is made for setting aside the judgment remanding the suit nor (sic) there any prayer to set aside the judgment of the trial Court. In fact, the appellate Court has made no order setting aside the decree of the trial Court but that it gives a direction that the suit may be taken to the file and disposed of a directed in the original decree of remand. ( 9 ) IT is to be noticed from the records of the appellate Court that after filing I. A. No. I a counsel has filed vakalat on behalf of the legal representative and the application I. A. No. II is filed by the said legal representative represented by the counsel and the defendants have also tiled objections for I. A. No. II. The parties thus have taken for granted that the legal representative was on record and the Court also proceeded on that basis, and allowed the appeal by remanding, the suit. The conduct of the legal representative subsequent to that is that he takes part in the proceedings before the trial court and ultimately he files a revision petition, i. e. . C. R. P. No. 115 of 46-47 in this Court complaining against the order of dismissal of the suit made by the trial court. The case reported in -- 1893 All WN 181 (A) is cited where the appellant in the suit having died during the pendency of the appeal, an application was made by his son to have his name placed on the record as representative of the deceased appellant. On that application the court made no order whatsoever, but nevertheless when the appeal came on for hearing the court allowed the applicant to be represented and ultimately decreed the suit. On that application the court made no order whatsoever, but nevertheless when the appeal came on for hearing the court allowed the applicant to be represented and ultimately decreed the suit. On appeal by the respondent, the High Court declined to allow the defendant's plea that the person in whose favour the appeal in the Court below had been allowed had not properly been made a party to the appeal. ( 10 ) THE facts in this case are almost similar to the case cited before us and I am of opinion that the respondent, legal representative of the original plaintiff, was represented, did take part in the original appeal by filing applications and got the case argued and even by taking part in subsequent proceedings before the trial Court. In this view, he cannot be heard to say now that he can fall back upon Section 151, Civil P. C. and approach the appellate Court which is ceased to have any jurisdiction and get the decree set aside by a mere application under Section 151. The proper course ought to be to take proceedings against the final disposal of the suit by the trial Court. ( 11 ) SRI Neelakanta, the learned counsel for the respondent, urges before us in this Court that the application I. A. No. III was left pending without orders on the file of the appellate Court though the appeal itself is disposed of, and that it was competent for the appellate Court to intervene at any stage of the proceedings and oven after the High Court disposed of the matter, which in this case also has been done in C. R. P. No. 115 of 1946-47 to get his suit remanded. He urges further that all the proceedings that have taken place without bringing the legal representative on record are null and void. If it is viewed that he was not properly represented in the appellate Court, it was open for him to have the final disposal declared as a nullity by taking proper proceedings. But in the view I have taken that the plaintiff was represented in the appellate Court, the judgment of the appellate Court is not a nullity. If it is viewed that he was not properly represented in the appellate Court, it was open for him to have the final disposal declared as a nullity by taking proper proceedings. But in the view I have taken that the plaintiff was represented in the appellate Court, the judgment of the appellate Court is not a nullity. ( 12 ) CONSIDERING from any point of view, I am of opinion that the learned Subordinate Judge lad no Jurisdiction to entertain the application under Section 151, Civil P. C. and set aside the decree of the lower Court. The order on I. A. No. III under revision, is set aside and the revision petition allowed with costs. Advocate's fee Rs. 15/ -. (sic)Uttaraj URS J. ( 13 ) (7-11-1949) The point involved is one of great importance for the administration of justice and I think it is necessary to set out the facts in detail. ( 14 ) THE petitioners were the respondents in R. A. No. 147 of 44-45 before the first Additional subordinate Judge, Bangalore. This appeal was against the judgment and decree of the Munsiff of Doddaballapur in O. S. No. 162 of 42-43 on his file. The plaintiff in that suit was one ramakrishniah. The suit was for a declaration and permanent injunction against the defendants who are the present petitioners. That suit was dismissed and the appeal was filed in the District court, Bangalore. When that appeal was pending on the file of the District Judge, the appellant ramakrishniah died. Then the present respondent Ramachandriah filed an application for being brought on record as the legal representative. Notices also were issued to the present petitioners who are the respondents in that appeal. At that stage, the appeal was transferred to the file of the principal Subordinate Judge, Bangalore, and it was registered as R. A. 130/44-45 on his file. In that Court also, notices were issued to the present petitioners in respect of the L. R. application filed by Ramachandriah, which was I. A. No. I. The notices also seem to have been served and the respondents then filed objections stating that Ramachandriah was not the legal representative and that there were other legal representatives. At this stage, again the appeal was transferred to the file of the First Additional Subordinate judge, and it was registered there as R. A. No. 147 of 44-45. At this stage, again the appeal was transferred to the file of the First Additional Subordinate judge, and it was registered there as R. A. No. 147 of 44-45. In that Court no action on this I. A. No. I, i. e. , the L. R. application, was taken. Arguments were heard and the learned Subordinate judge remanded the suit", to the Munsiff of Doddaballapur for fresh disposal. The Munsiff, doddaballapur, after receiving the records, found that no legal representative had been brought on record and that there was no plaintiff to prosecute the suit and as such, dismissed the suit. Then the present respondent filed C. R. P. No. 115/46-47 on the file of this Court praying for a revision of the order of the Munsiff of Doddaballapur. That C. R. P. was dismissed mainly on the ground that the petitioner i. e. , the present respondent haa got other remedies. After this, the petitioner in I. A. No. I filed an application under Sections 151 and 152, Civil P. C. before the Additional Subordinate Judge, who had remanded the suit, bringing to his notice that no orders had been passed on I. A. No. I, that without bringing him on record as a legal representative the arguments had been heard and the suit had been remanded, that that was not correct and that orders may be passed on his petition bringing him as the legal representative of the plaintiff and arguments be heard again. The learned Additional Subordinate Judge allowed this application and ordered that the petitioner i. e. , the present respondent might be brought on record as the legal representative in the appeal, and he also ordered that the order of dismissal passed by the learned Munsiff should be set aside and directed that the Munsiff should re-hear the case and dispose it of on merits. It is this order that is sought to be revised in this petition. ( 15 ) THE first ground that has been taken in this petition is that the Additional Subordinate Judge had no jurisdiction to entertain the application even, as a final order had been passed by him already remanding the suit for fresh disposal. It is this order that is sought to be revised in this petition. ( 15 ) THE first ground that has been taken in this petition is that the Additional Subordinate Judge had no jurisdiction to entertain the application even, as a final order had been passed by him already remanding the suit for fresh disposal. I am not inclined to accept this argument, because the order of the learned Subordinate Judge was in effect no order at all and could not be considered as a final order, in view of the fact that no legal representative of the appellant had been brought on record. It was an order without, an appellant on record and as such, it was a nullity as held in -- 'balaramier v. Vasudevan', AIR 1929 Mad 802 (P) and -- 'alabhai Vajsurbai v. Bhura Bhaya', AIR 1937 Bom 401 (G ). This is not also denied by the learned advocate for the petitioners but what his contention is that the appeal had abated. ( 16 ) THIS brings us to the second contention. The question whether the appeal abated because the court had not passed any order on the legal representative's application does not seem to admit of any doubt in this case. It is true, as contended by the learned Advocate, that no separate order of the Court is necessary for the abatement of the suit. If the application for bringing any legal representative is not filed in time, the suit abates automatically vide -- 'air 1937 Bom 401 (G)'. As observed in -- 'air 1929 Mad 802 (F)' a legal action on the death of a party to it passes into a state of suspense, and this State of suspense, if the legal representative is not brought on record within time, passes into a state of abatement. But in this case L. R. application was filed in time and no order was passed by the Court though objections had been filed. it cannot to said by any stretch of imagination that the appeal had abated, as the application had been filed in time and as no orders had been passed on it. But in this case L. R. application was filed in time and no order was passed by the Court though objections had been filed. it cannot to said by any stretch of imagination that the appeal had abated, as the application had been filed in time and as no orders had been passed on it. Even if we consider that the appeal had abated, there are authorities which go to tae length of saying that such an abatement order under such circumstances can be set side by the Court 'suo motu' or on the application of the party. A distinction has to be drawn between cases in which applications of parties are necessary and those in winch the Court can do these things of its own accord, and the present one is a case of the 'latter category. ( 17 ) THE next objection that has been taken by the learned Advocate for the petitioners is that the proper course for the respondent to take after the abatement of the suit was not to rile an application under SECTIONS 151 and 152, Civil P. O. It has already been observed that even an abatement order under such circumstances can be set aside toy the Court. It has to be observed that there is a plethora of authorities in support of this view. In -- 'kissen Gopal v. Sukuu', AIR 1927 Cal 76 (H), it was held that where pending the hearing of the case the plaintiff is adjudicated an insolvent and consequently he is not present at the hearing, and the Court is informed that the plaintiff had become an insolvent, the Court should call upon the Official assignee to state whether he intends to continue the suit and If the Official Assignee decides that he would continue the suit, it would then be necessary for the Court to make an order that he should give security for costs. It was also observed that the provisions of Order 9, Rule 8, Civil p. C. did not apply to 6uch a case and the dismissal of the suit for default was bad and the dismissal could be set aside in appeal whether it was under Section 151, Civil P. C. or whether it was under the inherent jurisdiction of the Court. In -- 'air 1937 Bom 401 (G)' referred to above, it was also observed that it was no part of the appellant's duty to take necessary steps to carry out the Court's order for the substitution of the names of the heirs of the deceased respondents who are properly served with notice in order to correct the record of the Court in terms of its order and that this was a ministerial function which the Court's establishment had to perform and if it was not performed or if it was neglected, the fault did not lie with the appellant. In this case also it was none of the business of the party to ask the Court to pass orders on his application. He had filed the application, notices were taken to the respondents, he had filed objections and it was for the Court to decide whether the objecttions were to be overruled or enquiry was to be held and orders passed. If the Court did not do it, the party could not. be held responsible for it. It was also held by this decision that the appeal which had abated under such circumstances could be set aside even beyond the period of limitation under Ss. 151 and 152 C. P. C. ( 18 ) THE next question that arises for consultation is whether the Court can under such circumstances interfere and set right things. Even in this respect there does not seem to be any doubt at all. The powers of the Court under Section 151 are very wide. It has been seen above that in --'air 1927 Cal 76 (H)', it was held that the Court come interfere and set aside the dismissal of the suit for default in appeal, whether under Section 151, Civil P. C. or whether it be under the inherent jurisdiction of the Court. It looks as though there is, apart from Section 151, an inherent power in every Court to do any act to render justice. It looks as though there is, apart from Section 151, an inherent power in every Court to do any act to render justice. It wag held in --'harnard Lal v. Cnatur-bnuj', AIR 1926 All 212 (1), that the enactment of Section 151 declares the existence of an inherent jurisdiction in all Courts to go beyond the law of procedure in the ends of justice, in-- -Alfred Zalair v. Sirajuddin', AIJi 1944 Lah 185 (J), it was held that in the absence of any specific words to that effect in the section, i. e. Section 151, Civil P. C. itself, the jurisdiction of the Court to act 'ex debito justatiae' cannot be ousted simply because another and perhaps an inconvenient remedy was also available. It was also held that a Court could undo an act under section 151 which it had been made to do at the instance of a person who had been discovered, although subsequently not to have been entitled to the relief which he had obtained from the court under false colours. In this case it was as much the duty of the present petitioners to bring to the notice of the subordinate Judge that no legal representative had been brought on record and that no arguments could be heard and no valid orders could be passed. It will not be wrong if we construe their quiescence as a fraud played on the Court and on the opposite party. It was held in --'air 1937 bom 101 (G)', that where an appeal was presented against a dead person or persons and the appeal had abated, the Court had power under Sections 151 and 153 in order to prevent injustice being done to permit the amendments and allow the appellant to add the legal representatives of the deceased. In -- 'nawab v. Sardar Singh', AIR 1935 Lah 176 (K), it was held that where a suit was dismissed under Order 9, Rule 8, Civil P. C. in ignorance of the death of the plaintiff, there was no need for a formal application by the deceased plaintiff's legal representatives under Order 9, K. 9 to set aside the order of dismissal, and when such an application was made it could be held to fall under Order 22, Rule 3 and the Court could exercise its powers under Section 151 in setting aside that order and restoring the case to file. It was held in --'pandit Balgobind v. Sheo Kumav. AIR 1924 All 818 (L), that Section 151, Civil P. C. could not be invoked more appropriately than for the purpose of correcting a miscarriage of justice appearing on the face of the proceedings and for making such orders in the nature of consequential orders as may be necessary for the ends of justice and to prevent an abuse of the process of the Court. It was held that the High Court had power not merely to set aside abortive proceedings in lower Courts but to pass such orders as the Court ought to have passed itself and could if the matter be referred back still pass. It was further held that there could be no estoppel against a litigant arising out of the wrongful act of the Court permitted or performed by its own officials. ( 19 ) IT is clear from the above decisions that the powers of the Courts under Sections 151 and 152 are vast and they could pass any order in the ends of justice. In this case, it has again to be repeated that the order passed by the Subordinate Judge was a nullity, an order without jurisdiction, and it was on account of this mistake of the Court that the whole proceedings have been held up. It was urged by the learned Advocate for the petitioners that it was the duty of the respondent to have brought the fact that he was not brought on record to the notice of the Court, and as already said, this was as much the duty of the petitioners as that of the respondent. However, I think the order of the learned Subordinate Judge directing the legal representative to be brought on record without inquiry does not seem to be tenable. ( 20 ) IN the result, I am of opinion that all the proceedings commencing from the order of remand in the lower Courts have to be set aside and I order accordingly, and this case will be remitted back to the Additional Subordinate Judge with a direction that he should take the case on file and hold an enquiry as regards the L. R. application I. A. No. I and pass orders and then proceed to dispose of the appeal according to law. (This Revision Petition coming on for hearing on 15th March 1950 in pursuance of an order of reference to a Pull Bench on 1-11-1949, the Court made the following order :)R. Venkata Ramaiya, J. ( 21 ) THE main contentions of the petitioners are that an order setting aside the dismissal of the suit could not be properly passed on an application filed under Section 151, Civil P. C. , that the petition is belated and lastly the present respondent is not the legal representative of the deceased appellant-plaintiff. ( 22 ) ORDER 22, Rule 3, Civil P. C. states : " (1) Where. . . . . . sole plaintiff. . . . dies and the right to sue survives, the Court, on a. n application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. (2) Where within the time limited by law no application, is made under Sub-rule (1), the suit shall abate so far as the deceased plaintiff is concerned. . . . . . " rule 5, Order 22 states: "where a question arises as to whether any parson is or is not the legal representative of a deceased plaintiff or a deceased defendant, such question, shall be determined by the Court. " by Rule 11 these provisions are made applicable to appeals. Sub-rule (2) does not come into play as the applications I. A. No. 1 was filed within a month after the death of the original plaintiff. What is required by Rule 3 is that on the death of the plaintiff or the appellant if the rights to sue survives, an application could be made by the legal representative of the deceased plaintiff or appellant to be made a party. On this being done it is obligatory on the Court to make him a party and proceed with the appeal. If, however, there is a dispute about the applicant being a legal representative the Court has to determine the question under Rule 5. All that the person desirous of proceeding with the case has to do is that he should make an application. The further acts necessary for enabling him to do so are left to the Court. Apparently by oversight or otherwise no order either granting or reputing the application was passed. All that the person desirous of proceeding with the case has to do is that he should make an application. The further acts necessary for enabling him to do so are left to the Court. Apparently by oversight or otherwise no order either granting or reputing the application was passed. The respondent also who was the applicant in I. A. No. 1 does not seem to have pressed on the attention of, the Court the need for a formal order and amendment of the cause title. This omission on his part cannot take away the right to proceed with the case if. he is the legal representative, as there is no duty cast on the litigant by the rules to remind the Court of observance of the rules. A possible reason for the omission is that the respondent's Counsel took part in the appeal without any objection and the appeal was disposed of after hearing him. If the case stood at this, there would have been no difficulty and the absence of strict compliance with the formalities may have been viewed as an inconsequential technicality as in -- 13 All WN 181 (A ). But the petitioners do not admit that the respondent is the legal representative of the plaintiff. And they did not allow the suit to proceed in pursuance of the order of remand passed in the appeal on the score of there being no competent person present to prosecute the suit after the death of the plaintiff. The attitude displayed by the defendants in tue proceeding is thus inconsistent and is nothing short of blowing hot and cold in the same breath, which cannot be countenanced. There can be no doubt that there has been a regrettable omission which has landed the respondent in undeserved predicament. As regards the remedy, the contention of appellants that it is by means of an appeal cannot be accepted since the Code provides for an appeal only against orders passed and not failure to pass orders. ( 23 ) THE proceedings in the appeal after the death of the original plaintiff cannot be considered to be regular as the Court has omitted to do what is required by Rules 3 and 5 of Order 22 and there is no one on record as plaintiff or his legal representative. The responsibility for this cannot be ascribed to the respondent. The responsibility for this cannot be ascribed to the respondent. As a result of the omission, both parties are placed in a disadvantageous position, the petitioners by bring denied an opportunity to contest that the respondent is the legal representative of the deceased plaintiff and the respondent by the absence of an order to treat him as a legal representative which entailed the dismissal of the suit. The consequences which have now ensued are to be traced to this omission. In -- ' air 1929 Mad 803 (P)', when a revision petition was disposed of without the legal representative of a party who was dead, on record it was ordered that the case should be heard afresh observing that a legal action on the death of a party to it passes into a state of suspense. . . . . . and while the action is in a state of suspense no valid act which is not purely formal or provisional but which involves a decision on the merits of any part of the action can be done by the Court. Under Section 152, Civil P. C. errors arising from, any accidental slip or omission in judgments, decrees or orders may at any time be corrected by the Court either of its own motion or on the application of the parties. This section corresponds to Rule 2 of Order 28 of the Rules of the Supreme Court in England except for the absence of the words "without an appeal" found in the rule. But this docs not imply that the section cannot be availed of to rectify mistakes which can be set right by means of an appeal. In -- 'hatton v. Karris', (IE92) AC 5-17 (M), Lord Watson said "the correction ought to be made upon motion to that effect and is not a matter either for appeal or for rehearing". In -- 'e v. E', (1. 903) V. LOP 44 (N), the correction was allowed even where the order was under appeal and notice of the appeal against the order sought to be altered was given by the party who applied. Section 152 provides a cheap and speedy remedy and there is no reason for driving the parties to secure it by means of an appeal which necessarily involves expense and delay. Section 152 provides a cheap and speedy remedy and there is no reason for driving the parties to secure it by means of an appeal which necessarily involves expense and delay. In --'parsotam dass v. Mahammad Hamid', AIR 1932 Oudh 291 CO), an application for execution was dismissed as barred by time relying on the office note. The dismissal was later set aside on the ground of mistake. This was held to be justified under Section 152 Civil P. C. though the erroneous order of dismissal was appealable. Section 153 too gives power to the Court to amend defects or errors in any proceeding in a suit. The section states that all necessary amendments shall be made for the purpose. of determining the real question or issue raised by or depending on such proceeding. The question in this case is who the real or proper legal representative is and an order necessary for determination of this has to be made. ( 24 ) IN my opinion the order to be made lor the purpose of shortening the litigation and avoiding confusion is to relegate the parties to the position they occupied at the time I, A. No. 1 was filed in the Appellate Court, direct the appellate Court to dispose it of after hearing both parties and decide the appeal treating what has been done in that Court and trial Court so far subsequent to I. A. No. I as of no effect. The parties will bear their own costs. There will be an order accordingly. N. Balakrishnaiya, J. ( 25 ) (HIS Lordship stated the facts of the case and then proceeded :) Sri Balaji, the learned counsel for the petitioners, urges that the application, I. A. No. III, which is filed under Section 151, Civil P. C. is not maintainable as the learned Subordinate Judge was not seized with jurisdiction of the appeal at that stage and that the order of the learned Subordinate Judge has the effect of not only setting aside the judgment of his own Court but also the judgment and decree of the trial Court which was passed subsequently. The contention of Sri Balaji is net without force. The contention of Sri Balaji is net without force. It is undoubted that the Courts have inherent powers to review their own orders or correct mistakes, but Section 151 cannot be employed to assume jurisdiction to set aside a decree passed in subsequent proceedings when there is no appeal against these proceedings. ( 26 ) IT is to be noticed from the records of the lower appellate Court that, after filing I. A. No. I, a counsel has filed vakalat on behalf of the legal representative and the application I. A. No. II is filed by the said legal representative represented by the counsel and the defendants have also filed objections for I. A. No. II. The parties thus have taken for granted that the legal representative was on record and the Court also proceeded on that basis, and allowed the appeal by remanding the suit. The conduct of the legal representative subsequent to that is that he takes part in the proceedings before the trial Court and ultimately he files a revision petition i. e. C. B. P. No. 115 of 1946-47 in this Court complaining against the order of dismissal of the suit made by the trial Court. In --'1893 All WN 181 (A)', where the appellant in the suit having died during the pendency of the appeal, an application was made by his son to have his name placed on the record as representative of the deceased appellant. On that application, the Court made no order whatsoever, but nevertheless when the appeal came on for hearing, the Court allowed the applicant to be represented and ultimately decreed the suit. On appeal by the respondent, the high Court declined to allow the defendant's plea that the person in whose favour the appeal in the Court below had been allowed had not properly been made a party to the appeal. ( 27 ) THE facts in this case are almost similar to the case referred to and I am of opinion that the respondent, legal representative of the original plaintiff, was represented and did take part in the original appeal which was allowed in his favour. ( 27 ) THE facts in this case are almost similar to the case referred to and I am of opinion that the respondent, legal representative of the original plaintiff, was represented and did take part in the original appeal which was allowed in his favour. In this view, he cannot be heard to say now that he can fall back upon Section 151, Civil P. C. and approach the appellate Court which has ceased to have any jurisdiction and get the subsequent decree set aside by a mere application under section 151. The proper course appears to be to take proceedings against the final disposal of the suit fay the trial Court. ( 28 ) SRI Neelakanta, the learned counsel for the respondent, urges before us in this court that the application I. A. No. III was left pending without orders on the file of the lower appellate Court though the appeal itself is disposed of, and that it was competent for that Court to intervene at any stage of the proceedings, and even after the High Court disposed of the matter, which In this case also has been done in C. R. P. No. 115 of 1946-47 to get his suit remanded. He urges further that all the proceedings that have taken place without bringing the legal representative on record were null and void. In the view that he represented in the lower appellate Court and took part and obtained a decree in his favour, it cannot be said that the proceedings are a nullity. ( 29 ) CONSIDERING from any point of view, I am of opinion that the learned Subordinate Judge had no jurisdiction to interfere under Section 151, Civil P. C. to set aside the subsequent decree of the trial Court. The order on I. A. No. III under revision, is set aside, and the revision petition allowed with costs. Advocate's fee Rs. 15/ -. Mallappa, J. ( 30 ) I agree entirely with the opinion of Venkataramiah J. I would like to merely add that the decision in -- 'munivenkatappa v. Gopala-krishna Setty and Brothers', 52 Mys HOB 33 (P), in a way supports the conclusion arrived at. In that case it was decided that a. sale in an execution case, held after the death of the judgment-debtor without bringing his legal representatives on record is a nullity. In that case it was decided that a. sale in an execution case, held after the death of the judgment-debtor without bringing his legal representatives on record is a nullity. No question of abatement arises as an L. R. application had been filed but no valid order can be passed after the death of a party without bringing his legal representatives on record. ( 31 ) IT is clear that the proceedings taken are not binding on persons who are not parties to the case. The appellant-plaintiff died and an application was filed in the District Court by one ramachandriah to be brought on record as the legal representative of the deceased. He was however, not brought on record by oversight in the subordinate Judge's Court, as the case was at that stage transferred to that Court from the District court. Arguments were no doubt heard, as if a legal representative was brought on record, though in fact he had not been brought on record. The case was, however, remanded as if he had been brought on record. Jf the defendants who had failed in that case had come up to this Court complaining against the order remanding the suit without formally bringing the legal representative of the Appellant-Plaintiff on record, the decision in -- 1893 All WN 181 (A)', would have been applicable. It was possible to say that having argued the case as if the legal representative of the plaintiff-appellant was on record, the defendants are estopped from contending that it is not so. They did not do so. On the other hand, the defendants took an objection in the Munsiff's Court that the plaintiff had died and without bringing his legal representative on record the suit cannot proceed and on that ground got the suit dismissed. They cannot now urge that the legal representative must be deemed to have been brought on record, after getting the suit dismissed on the ground that the legal representative had not been brought on record. ( 32 ) THE first order of the learned Subordinate Judge remanding the suit to the lower Court was not valid and in fact without the legal representative of the deceased plaintiff on record no such order could have been passed. ( 32 ) THE first order of the learned Subordinate Judge remanding the suit to the lower Court was not valid and in fact without the legal representative of the deceased plaintiff on record no such order could have been passed. The respondent cannot be allowed to suffer by the Court's failure to pass an order which it was bound to pass and the defendants who are petitioners in this case cannot be allowed to take advantage of their inconsistent attitude. When these things were brought to the notice of the learned Subordinate Judge, he has ordered that the legal representatives 'should be brought on record and the suit remanded. It will be noticed that this has been done without giving an opportunity to the defendants to show that Ramachandra Rao is not the legal representative of the deceased plaintiff. The only order in these circumstances that could be passed is to set aside all the orders passed subsequent to the application filed for bringing the legal representative of the deceased plaintiff on record and to direct the learned subordinate Judge to proceed with the appeal from that point. The parties have to bear their own casts. I, therefore, agree with the opinion of Venkataramaiya J. There will be an order accordingly. ( 33 ) ORDER accordingly.