Madhavi Amma vs Lookkose and Another

Janaki Amma, J.—Additional Defendants 3 to 6 who were impleaded as the legal representatives of the second Defendant in a suit for dissolution of partnership are the revision Petitioners. A preliminary decree was passed in the suit on 27th November 1972. The second Defendant died on 17th December 1972. But the application for impleading his legal representatives was filed only on 28th May 1973 more than 90 days from the date of death of the second Defendant. Defendants 3 to 6 contended that the suit had abated so far as they were concerned. The court overruled the contention and directed the legal representatives to be brought on record. The above order is challenged by the Petitioners.

The contention put forward on behalf of the Petitioners is that in view of Order XXII, Rule 4 of the CPC the legal representatives should have been brought on record within the period of 90 days. The omission to make a motion thereof, according to the Petitioners, has caused the abatement of the suit as against them.

There is, no doubt, that if Order XXII, Rule 4 of the CPC is to apply, the contention put forward by the Petitioners would stand. But the stand taken by the Respondents is that Order XXII, Rule 4 has no application and the relevant provision of law in cases of the present kind is contained in Order XXII, Rule 10 CPC which reads:

In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved.

The question as to whether Rules 3 and 4 would apply to a case of death of one of the parties after a preliminary decree is passed in a case where the decree could be either preliminary or final has been the subject-matter of controversy between the Allahabad High Court on the one hand and other High Courts on the other. No decision on the point by the Kerala High Court has been brought to my notice. There was at one time difference of opinion expressed in different cases by the Madras High Court as is made out from the decisions in Subbarayudu v. Ramadasu AIR 1923 Mad 237 and Lakshmi Ammal alias Pichai Ammal Vs. Alamelu Ammal and Another, . The question was, therefore, referred to a Full Bench and the decision of the Full Bench is Perumal Pillai v. Perumal Chetty A.I.R 1928 Mad 914 (F.B.). The Full Bench made a review of the case-law on the point and relied on the principles laid down by the Privy Council in Lachmi Narain Marwari v. Balmakund Marwari AIR 1924 P.C. 198. That was a case of partition. The High Court in appeal passed a preliminary decree for partition and sent back the case to the Subordinate Judge to pass a final decree. Since the Plaintiff did not appear on the day when the case stood posted, the Subordinate Judge dismissed the suit. The matter finally came up before their Lordships of the Privy Council. The order of dismissal was set aside with the following observations:

After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have, on the making of the decree, acquired rights or incurred liabilities which are fixed, unless or until the decree is varied or set aside.

Following the above principle, the Madras High Court held that there was no abatement of the suit. The Full Bench remarked that the point involved was a casuo omissus from the CPC and nobody had thought of providing for it.

The above view was accepted by the Calcutta High Court in Nazir Ahmmad and Others Vs. Tamijaddi Ahamed and Others, and by the Oudh Chief Court in AIR 1927 156 (Oudh) . However, when a similar question came up for decision before the Allahabad High Court in Anmol Singh and Others Vs. Hari Shankar Lal and Others that court did not choose to follow the above reasoning. According to the learned Judges of the Allahabad High Court, the case before Their Lordships of the Privy Council was of a totally different character and Their Lordships had no occasion to consider the specific language of the various rules in Order XXII. The court observed as follows:

Now when the suit is still continuing even after the passing of the preliminary decree, it is difficult to see how Order 22, Rule 4, cannot be applicable to it. It expressly states that the Court ''shall proceed with the suit." There seems to be no reason to restrict the meaning of the word ''suit'' in this particular rule and say that there ''suit'' means the stage in the suit up to the passing of the preliminary decree only and not thereafter.

The above ruling was followed by the Allahabad High Court in Niaz Ahmad v. Parsottam Chandra AIR 131 All. 154 . The Bombay High Court in the decision in Dawarali Jafarali Saiyad Vs. Bai Jadi and Others, took the same view as the Madras High Court. That was a suit based on a mortgage. Beaumont, C.J. observed:

Now where a preliminary decree has been passed, it seems to me that it is quite inappropriate to talk about the right to sue surviving. The rights of the parties are crystallised by the preliminary decree The mortgage is established, the mortgagor has a right to redeem, and in default the mortgagee is given certain rights. It is no longer open to the Plaintiff to sue in respect of his original cause of action; all he can do is to enforce his rights under the preliminary decree. No doubt, an application for a final decree is not technically an application in execution of the preliminary decree, but it is certainly not an application in respect of the original right to sue. It is an application to enforce the rights under the preliminary decree, and though the suit may be continued for that purpose, it seems to me inappropriate to refer to the right to sue as either surviving or not surviving.

The view taken by the Madras High Court has again been followed by the Nagpur High Court in AIR 1947 75 (Nagpur) by the Rajasthan High Court in Pooranchand and Others Vs. Shriram and Others, by the Patna High Court in Babuie Shanti Devi Vs. Khodai Prasad Singh and Others, and in Raghunandan Sahu and Others Vs. Badri Pandey and Others, . The Calcutta High Court took the same view in Tara Pada Ray Vs. Shyama Pada Ray and Others, . The Delhi High Court had occasion to decide the question in Kishan Lal and Others Vs. Nathi Lal, . The latest ruling on the point appears to be that of the Karnataka High Court in B. Venugopalacharya v. B. Tatachari AIR Kar 64. That court also adopted the view of the Madras High Court.

Reference may in this connection be made to Rules 3 and 4 of Order XXII of the CPC These rules expressly refer to the survival of the right to sue. The view expressed by the majority of the High Courts is that there is no survival of the right to sue, once the preliminary decree is passed. In this connection, the Full Bench of the Madras High Court in Perumal Pillai v. Perumal Chetty AIR 1928 Madras 914 has referred to the case, Chapman v. Day (1883) 48 L.T. 907 and the following observations of Lopes J.:

It is said that the Defendant having died, the maxim actio personalis moritur cum persona applies. I think it does not apply in such a case as this. I think "action" means "right of action" and if that is the true way of looking at it, the right of action here had been determined before the death of Defendant.

If the above principle is applied, once a preliminary decree is passed, there is no survival of the right to sue and, therefore, there is no question of application of Order XXII, Rule 3 or Rule 4 of the CPC It follows that the better and the more reasonable view is that there can be no abatement of the suit once a preliminary decree is passed. I am in respectful agreement with the above view.

It is interesting to note that even though the Allahabad High Court has adopted a different view regarding the interpretation of Rules 3, 4 and 10 of Order XXII of Code of Civil Procedure, in practice that court also has fallen in line with the other High Courts by adding by way of amendment a clause to Rule 12 to the effect that nothing in Rules 3, 4 and 8 shall apply to proceedings in the original court taken after the passing of the preliminary decree where a final decree also requires to be passed having regard to the nature of the suit. A similar amendment has been adopted by the Orissa High Court also.

For the reasons aforesaid, the order of the court below has to stand. The revision petition is accordingly dismissed. There will be no order as to costs.