ABDUL WAHAB Vs. RAMAKRISHNIAH

JUDGEMENT

(1.) The petitioners before this Court are the respondents in R. A. No. 147 of 44-45 on the file of the First Additional Subordinate Judge, Bangalore. The first respondent herein is one Ramakrishnaiah who died on 9-1-1945 when the appeal was pending before the lower Court. The said Ramakrishnaiah filed a suit on 6-11-43 for declaration and possession of the suit schedule properties in the Court of the Munsiff of Dodballapur. The suit was dismissed on 7-11-1944. The said Ramakrishnaiah Tiled an appeal on 3-1-1945 before the District Judge, Bangalore and on 19-1-1945 it was reported to the Court that the appellant was dead. The case was adjourned to 29-1-1945 to bring the legal representative on record. I. A. No. 1 was filed on 29-1-1945 to bring one Ramachandriah as the legal representative of the deceased Ramakrishnaiah. Notices were ordered on 29-1-1945 to be served by 2S-2-1945. In the meanwhile, on 30-1-1945 the appeal was transferred by the District Judge to the Subordinate Judge who issued notices to the respondents and after service the appeal was disposed of by arguments on 30-3-1946 with the result, that the dismissal order of the trial Court was set aside and the suit was remanded by allowing the amendment application of the defendant for fresh disposal according to law. After remand, objections were taken in the trial Court that there was no living plaintiff represented in the suit and that the suit was dismissed as there was no party to prosecute the suit. Against that order, C. R. P. No. 115 of 41-43 was filed.

(2.) It may be observed here that no notices were served on the respondents to give intimation of the L. R. application filed by Ramachandriah with the result that the application was lost sight of by the appellant and the Court. No final orders were passed nor any legal representative brought on record before the appeal was disposed of on merits. In the revision petition above adverted to, the High Court observed that since no orders were passed on the L. R. application which was necessary for the progress of the case, the suit ended in dismissal in the Munsiff's Court and that the mere filing of the petition will not entitle the petitioner to proceed with the suit. That being so, the High Court declined to interfere with the order in revision with an observation that the petitioner may seek his own remedy in other proceedings according to law. The petitioner then filed an application before the First Additional Subordinate Judge (Court of Small causes . Bangalore under Sections 151 and 152, Civil P. C. Objections were called for and filed by the defendants on 11-0-1918. The main points urged arc that the petitioner has no locus standi' to maintain the application as he was not a party to the proceedings and the application was belated, it is also stated in the objection statement that the deceased Ramakrishnaiah has left behind him his wife and children and the status of the petitioner also is disputed. The learned Subordinate Judge states that the default in not having brought the legal representative on record constituted an error or omission on the part of the Court and on that ground he allowed the application and made, what he calls, a formal order directing Ramachandriah to be brought on record as the legal representative of the deceased appellant. He further directed the lower Court to take the suit on file and dispose it of as directed in the remand order of that Court dated 30-3-1946. In effect, the order on this application constitutes a reversal of the judgment and decree of the Court below which cannot be done under the guise of correction of an error or omission under Sections 151 and 152, Civil P. C.

(3.) Sri B. V. Balaji, learned counsel for the petitioners contends that at the time of arguments his party never knew the death of the appellant and the case went on as if the appellant was alive. If, as a matter of fact, the appellant was dead on that date, the judgment and the further proceedings are a nullity. The omission to bring the legal representative on record within 90 days from the date of the death of the appellant should automatically operate as abatement of the suit. It cannot be that the legal representative of the appellant could be brought on record more than two years after the death of the appellant and as such, the interference of the lower appellate Court below works prejudice so as to take away the right which is vested in his clients.