CHOYYERI ABDULLA Vs. ERANCHERRY ILLATH DAMODARAN NAMBOODIRI

JUDGEMENT

(1.) This is a case slightly out of the ordinary as will presently appear.

(2.) There was a suit against the appellant (the first defendant) and others and the suit was dismissed. Pending appeal before the Subordinate Judge, one of the defendants died. That was not noted; and in the appeal, the Subordinate Judge set aside the decision of the Munsiff and sent the case back for fresh disposal. Pending the case before the Munsiff after the remand, the death of the defendant was noted and that was brought to the notice of the Munsiff. Applications for setting aside abatement and for impleading the legal representatives were also filed before the Munsiff. The Munsiff, since he had no jurisdiction to implead the legal representatives, sent the case to the Subordinate Judge with a report; and after the case reached the Subordinate Judge, the plaintiff (the contesting respondent) filed applications before the Subordinate Judge for setting aside abatement and for impleading the legal representatives. And the legal representatives were impleaded, after which the case was again remanded to the Munsiff for fresh enquiry. It is against this that the second appeal has been filed.

(3.) It is argued by the appellant's counsel that the procedure adopted by the Munsiff in sending a report and submitting the case to the Subordinate Judge was incorrect. On the other band, the counsel of the contesting respondent has drawn our attention to the decision of the Calcutta High Court in Abdul Aziz v. Lakshmi Chandra Majumdar ( AIR 1923 Cal. 676 ) Almost on similar facts when a case was remanded by the High Court, the Subordinate Judge ignored the decision of the High Court holding that the decision was void since the judgment of the High Court was passed without knowing about the death of a party. And the Subordinate Judge restored his previous decision. Against that, another appeal was taken before the High Court; and in the appeal, the High Court observed that the proper course for the Subordinate Judge was to have sent the case to the High Court with a report and not to have ignored the decision of the High Court. The counsel of the respondent has submitted that this decision has been followed by other High Courts as well. But, we are not citing all the decisions the counsel of the respondent has collected. We shall mention only one decision, namely, Bhagwat Prasad v. Bansi Mahton (AIR 1958 Pat. 278), where a learned Judge of the Patna High Court has followed the decision of the Calcutta High Court mentioned above.