Sivaprakasam and Others vs Palaniappa Mudaliar

Sundara Aiyar, J.—This is an application u/s 115, Civil Procedure Code, to revise the order of the District Munsif of Mayavaram in

Miscellaneous Petition No. 825 of 1905 in so far as he refused to award to the petitioners here, the costs which had been incurred by their mother

in O.S. 243 of 1904. It is necessary to state the facts briefly, to make the point arising for decision clear. O.S. No. 243 was instituted by

Palaniappa Mudali against Thayali Anni, the mother of the petitioner, for a declaration that a certain will, which she had presented for registration,

was a forgery. The suit was originally instituted in the Sub-Court of Kumbakonam. That court, holding that it had no jurisdiction to entertain the

suit, returned the plaint for presentation to the proper court. Subsequently the plaint was presented in the Munsif''s Court of Mayavaram Thayali

Anni died subsequently. After her death the plaintiff applied to the Munsif for permission to withdraw his suit, with leave to sue again, and

permission was granted. The order giving permission was subsequently set aside by this court in Letters Patent Appeal No. 146 of 1909 presented

by the present petitioners, the sons of Thayali Anni. They had previously asked the Munsif to review his order granting leave to sue again but failed.

This court, in setting aside the order granting leave, remitted the plaintiffs petition to withdraw his suit with leave to sue again, for fresh disposal.

The District Munsif''s Court, on rehearing, dismissed the plaintiff''s petition and granted to the present petitioners their costs incurred previously in

this court and also their costs incurred in the plaintiff''s petition in the Munsif''s Court. This revision petition relates to the refusal to award to the

present petitioners the costs incurred by their mother in the Kumbakonam Sub-Court, before that court had returned the plaint. The Munsif holds

that subsequent to the re-presentation of the plaint in the Mayavaram Court the suit abated on Thayali Anni''s death ; that no petition was put in by

the plaintiff or by the present petitioners for the substitution of the petitioners'' names on the record in the place of Thayali Anni ; and that he bad no

power, in these circumstances, to award to the petitioners the costs incurred by Thayali Anni. The petitioner''s contention before me is, that he was

mistaken in supposing that he had no power to do so. I am of opinion that the District Munsif is right. If a suit abates on the ground that no

representative of a deceased defendant is brought on record, there is, as far as I am aware, no provision entitling the representatives of the

deceased defendant to come to court and ask for the costs of the suit. When the abatement of the suit is in consequence of the death of the

plaintiff, there is provision made in the Code for ordering the costs of the defendant to be paid out of the estate of the deceased plaintiff. But there

is no similar provision for directing the plaintiff to pay to the heirs of the deceased defendant the costs incurred by such deceased defendant, when

the suit abates in consequence of his death. What remedy, if any, would be open to the heirs, in such a case, does not arise for decision in this

petition. It may be that they might be entitled to institute a suit for the purpose. At any rate, my attention is not drawn to any authority for holding

that the court can award, in the suit which has abated, costs to the heirs of the deceased defendant against the plaintiff.

The order of the Munsif was therefore right, and I dismiss this petition.