S. Eranhi Pakkran vs M.K. Pathumma and Others

The suit in this case was instituted by the plaintiffs as the heirs of one Kunhamed, a Mahomedan for the ejectment of certain tenants from some

land leased to them by Kunhamed. The second defendant denied plaintiff''s rights to succeed to Kunhamed''s property as his heir and contended

that the succession to his properties was governed by the Marumakkatayam law, and that he himself was entitled to the property in question as the

next Karnavan of the tarward of the deceased Kunhamed. The plaintiffs contended that the question of the rule of succession to the property was

res judicata in consequence of an order passed in a prior suit relating to a different matter instituted by Kunhamed, when a question arose on

Kunhamed''s death whether the present plaintiffs were entitled to continue the suit as his legal representatives. The 2nd defendant, who was a party

defendant in that suit, contested the plaintiff''s heirship and right to come in as Kunhamed''s representative but the Court upheld their claim. The

District Munsif held that the previous order would not make the question of plaintiff''s heirship res judicata and on the merits he decided the

question against the plaintiffs. On appeal the District Judge arrived at a different conclusion on the question of res judicata and passed a decree in

the plaintiff''s favour. The second defendant has preferred this second appeal. We are of opinion that the judge''s view on the question of res

judicata is wrong. The question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be

regarded as one of the questions arising for decision in the suit itself. It is really a matter collateral ''to the suit and one that has to be decided before

the suit itself is proceeded with. The CPC does not provide for an appeal against an order deciding the question though the repealed CPC did. The

view is in accordance with the opinion of the Bombay and Allahabad High Courts. See Balabai v. Ganesh ILR (1902) B. 162 and Purshotam Rao

v. Janki ILR (1905) B. 109. We reverse the decrees of the Lower Appellate Court and remand the appeal for fresh disposal according to law on

the merits. The costs of this second appeal will abide the result.