Sinni Ammal vs R. M. Pl. S. Palaniappa Chettiar and Others

Curgenven, J.—The plaintiff, a Nattukottai Chetty, sued the mother of the deceased executant of a promissory note; and although the suit

was dismissed in the first Court, it succeeded in appeal. The mother has now brought S. A. No. 1799 of 1923, and seeks to set aside its

abatement caused by the original plaintiff''s death after obtaining leave to excuse the delay. The plaintiff admittedly died on 29-1-1924 and the

allegation in the affidavit is that when the second appeal was called on 4--3 - 1926 the appellant learnt for the first time that the respondent was

dead. I heard this case partially in November last, and it was then acknowledged by the petitioner''s vakil that in view of certain facts stated in the

counter-affidavit, his client must be taken to have had knowledge of the death by virtue of a notice served in certain connected proceedings. Those

proceedings arose out of a claim order which was allowed in favour of the defendant and led to a suit (C. S. No. 1062 of 1924 on the file of the

Tirupur Munsif'' s Court and O. S. No. 247 of 1926 on the file of the District Munsif''s Court of Erode). The plaintiff having died during the

pendency of that suit, an application was made to bring on his legal representatives and notice was served on the defendant''s vakil, on 17--3--

1926, upon which she had no objection.

It is thus indisputable that the defendant'' s vakil had notice of the death as early as that date, and the only argument which could avail the

petitioner is that his knowledge was not equivalent to the knowledge of his client. This was not the attitude which he took up at the previous hearing

of the case and I do not think that in any event I can accept it as valid. Unless some special reason can be shown to the contrary, the knowledge of

a pleader must be taken to be the knowledge of the client. I can therefore see no sufficient reason to excuse the delay on the ground of ignorance

that the death had taken place.

It is then argued that because in the suit in question legal representatives were brought on record, that was equivalent to bringing them on record

in the second appeal. In the Privy Council case in Brij Indar Singh v. Kanshi Ram [1918] 45 Cal 94 it was no doubt held that when a legal

representative was brought on record in a Civil Revision Petition arising out of a suit, that would avail for all subsequent stages in the suit, and of

course the same would hold good in case of an appeal. Reference has also been made to Phul Kumari v. Ghanshyam Misra [1907] 35 Cal. 202

for the contention that, a suit filed upon the allowance of a claim petition is in the nature of an appeal from that petition.

Putting these two decisions together, it is argued that to bring in legal representatives in a suit arising out of a claim petition filed in the execution

of a decree amounts to bringing them on record in a second appeal from that decree. I cannot assent to this proposition. A suit arising out of a

claim petition, although it may operate in substance as an appeal against the order in the petition, is formally speaking, an entirely independent

proceeding and bears no analogy, from the point of view of procedure to a revision petition or to an appeal preferred against a decree.

I find no substance accordingly in this argument,

C. M. Ps. Nos. 2681 to 2683 are accordingly dismissed with one set of costs.