Adusumilli Gopalakrishnayya and Another vs Kosuri Venkataratnam and Others

Krishnan, J.—The facts out of which this second appeal arises are as follows: The appellants who are landlords brought these suits O. S.

271, 272 and 275 of 1909 against the various tenants for ejectment. They originally filed the suits in the District Munsif''s Court, but the High Court

finally held that the suits were not filed in the proper Court which was the revenue Court, and directed the plaint to be returned for re-presentation

to the proper Court. There was an appeal to the Privy Council, A. S. 55 of 1916, in which the three cases were consolidated into one appeal. The

decision of the Privy Council is reported in Suryanarayana v. Pattanna A. I. R. 1918 P. C. 169 We are not concerned in the present proceedings

with the reasons of the Privy Council, nor with their ruling itself. It would seem that pending the hearing of the Privy Council appeal, one Seshayya,

defendant in O. S. 272 of 1909, died, and no legal representative was brought on record before them. It is now argued by his legal representative

Venkataswami who is the respondent before us, that this decision so far as his case is concerned, is a nullity as nobody represented his interests

and as it was given against a dead man. The District Judge has given effect to this contention and disallowed execution against Venkataswami,

Seshayya''s legal representative.

On appeal it is brought to our notice that the case is exactly covered by the ruling of this High Court Kalyani Pillai v. Thiruvenkataswami Iyengar

A. I. R. 1924 Mad. 695 which followed the ruling of the Patna High Court in Deonandan Prasad Singh v. Janki Singh [1920] 5 Pat. L. J. 314

These two decisions are based upon 3 and 4. Willam 4, Chap. 41, Section 23. That section seems to be fairly clear, that even though a party

before the Privy Council might have died pending the appeal, the order made by the Privy Council in the case nevertheless has full force and effect

and is to be carried out by the Courts in India. It is enacted

that in any case where any order shall have been made on any such appeal as last aforesaid, the same shall have full force and effect

notwithstanding the death of any of the parties interested therein.

The second part of that section is not relevant here. It is ingenuiously suggested by the learned vakil for the respondent that there is some

misapprehension as to the meaning of this by both the Madras High Court and the Patna High Court and that Section 23 should be read with

Section 21 which talks about ""order and decree"" and he contends that Section 23 will not apply in the case of a decree as that section talks only

about an ""order."" I am unable to follow this argument. What we are carrying out here is the order of the Privy Council. The wording is:

His Majesty having taken the said report into consideration was pleased by and with the advice of his Privy Council to approve thereof and to

order as it is hereby ordered that the same be punctually observed, obliged and carried into execution.

Whereof the Judges of the High Court of Judicature at Madras for the time being and all other persons whom it may concern are to take notice

and govern themselves accordingly.

The order has full force in spite of the fact that when that order was made, one of the parties affected by that order was not alive and we are

bound to carry out that order. It follows then that the fact that Seshayya was dead at the time of the hearing of the Privy Council appeal is of no

importance.

Furthermore it must be remembered that the Privy Council consolidated the three cases into one appeal and heard a joint argument as regards

all the cases It was after hearing an argument like that that they decided the cases. The ruling in Gopalacharyulu v. Subbamma [1920] 43 Mad.

487 is that where a decision is given in a suit instituted and conducted bona fide by some only of a member of persons similarly interested in the

matters, it is res judicata against the representative of any defendant who had died pending the appeal, but whose legal representative was not

brought on record in the appeal or second appeal. No doubt that case dealt with the binding character of the decisions on the persons who were

the legal representatives of the deceased person and who were not brought on record and not exactly with the executability of the decree in the

case, but the two are very analogous to each other. 43 Mad. case could, therefore, be also relied on for the position that this decree could be

executed against Venkataswami in spite of the fact that the person whose legal representative he is was not on record at the time of the hearing of

the Privy Council appeal. C. M. S. A. 31 of 1924 must, therefore, be allowed and the order of the first Court restored. C. M. S. A. 32 of 1924

follows C. M. S. A. 53 of 1924 and 32 of 1925 fails on the view we have taken and must be dismissed.

As regards costs there will be costs for the appellants in C. M. S. A. 31 of 1924 and for respondent in C. M. S. A. 53 of 1924. There will be

no costs in the other two cases.

Odgers, J.

I agree, and I only wish to say one word as regards the first point raised by Mr. Varadachariar, as I was a party to the decision in Palani Pillai v.

Thiruvenkataswami Iyenger A. I. R. 1924 Mad. 695 Nothing has been shown or said here to lead me to take a different view to that which I

adopted in conjunction with Phillips, J. in that case, fortified as we were, by the decision in Deonandan Prasad Singh v. Janki Singh [1920] 5 Pat.

L. J. 314 The attempt to distinguish it on the ground of difference in language in Sections 21 and 23 cannot, I think, be supported for a moment.

There is nothing in the rest of the statute, as far as I know, that would lead one to the inference that the words ""any order or decree"" mean anything

different from or intended to have any different effect from the expression any order"" used in Section 23.

I agree with the order as to costs.