PADMANABHAN NAMBI Vs. RAGHAVA IYER

JUDGEMENT

(1.) The 2nd defendant in O.S. No. 957 of 1110 of the Kuzhithura Munsiffs Court is the appellant in this Second Appeal. The appeal is from an order in execution. The decree is for arrears of jenmi dues payable by the family of defendants 1 and 2 for the decree schedule properties. Defendants 1 and 2 belong to a joint Hindu family governed by the Mitakshara law. When the suit was instituted the 1st defendant was the manager of the joint family. The 2nd defendant is the eldest son of the 1st defendant and he was impleaded in the suit as a person in possession of the properties under the 1st defendant. Defendants 2 to 8 were impleaded as persons having some interest in the suit properties. Defendants 3 and 4 alone contested the suit. The 1st defendant died on 30.2.1111. But no one was impleaded in his place and the suit was decreed on 30.6.1111. In execution of the decree the plaintiff filed a petition on 23.12.1119 for impleading the 2nd defendant and his younger brother as the legal representatives of the 1st defendant. Without issuing notice to the persons sought to be impleaded the execution court recorded the 2nd defendant as one of the legal representatives of the 1st defendant and impleaded his brother as additional 9th defendant. When the decree holder subsequently applied for execution of the decree the 2nd defendant objected on the ground that the decree was a nullity as the legal representatives of the 1st defendant have not been impleaded before the suit was decreed.

(2.) The Trial Court held that since the 2nd defendant was the legal representative of the 1st defendant and since he was already on the array of parties the suit had not abated and that the decree was not a nullity. In appeal filed in the District Court the order of the Trial Court was confirmed.

(3.) The question to be decided in this second appeal is whether the decree is a nullity by reason of the fact that the legal representatives of the deceased 1st defendant were not impleaded before the suit was decreed. It is not disputed that the 2nd defendant who is the eldest son of the 1st defendant and who became the manager of the joint family on the death of the 1st defendant was the legal representative of the latter. It is stated in the objection petition of the 2nd defendant that on the death of the 1st defendant the suit properties devolved on him. It is therefore clear that on the death of the 1st defendant the right to sue survived against the 2nd defendant. O.22 R.4 C.P.C. can have no application in such cases. It is only where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives, that the court should, on application made in that behalf, cause the legal representative of the deceased defendant to be made a party to the suit, and it is only where within the time limited by law no application is made for the purpose that the suit will abate as against the deceased defendant. Therefore no question of abatement under O. 22 R. 4 arises in this case.