KALYANIKUTTY AMMA Vs. RAVUNNI NAIR

JUDGEMENT

(1.) Raghavan Nair, the original plaintiff, sued for declaration of title in respect of the, suit property and of a right of way to the temple situated on it. After the suit was commenced, he made an application under O.1 R.8, C.P.C. to sue in a representative capacity on behalf of his tarwad; this was granted. He died on the 18th September, 1958. Ravunni Nair, the first respondent, who is a member of the same tarwad applied more than three months after the above date, but within three years thereof, for permission to continue the suit as the legal representative of the original plaintiff. His application was dismissed on the 24th June, 1959, and the suit was held to have abated by judgment dated the 27th June 1959. Ravunni Nair appealed against the judgment to the District Judge. Holding the appeal to be competent, he allowed the first respondent to prosecute the suit. In second appeal by the first defendant, it was contended, that the declaration that the suit had abated did not amount to a decree and could not have been appealed against before the District Judge.

(2.) There is almost complete unanimity of judicial opinion, that a decision that the suit has abated is tantamount to a decree, for the purpose of appeal. The earliest case brought to my notice is Bhikaji Ramachandra v. Purshotam ILR 10 Bombay 220 decided under S.366 of the Civil Procedure Code of 1882, where it was held, that an order or judgment that a suit do abate

(3.) This view was accepted by the Madras High Court in Subramania Iyer v. Venkataramier AIR 1916 Mad. 1068 by a Division Bench. In a later case of that court, Suppu Nayakan v. Perumal Chetty AIR 1917 Mad. 285 , although the point did not directly arise, because the legal representative of the defendant who died was impleaded, the Bench held that the order declaring the suit to have abated is a decree, as it determines the rights of the plaintiff with respect to the subject matter of the suit and is appealable as such, not being excluded from the definition of a decree and not being appealable as an order. For example, an order of dismissal of a suit would have been a decree, but for its being specifically excluded from the definition of a decree in S.2(2), Civil Procedure Code. In the same case Moore, J. considered, that the plaintiff's claim had been effectively disposed of, as if the suit had been dismissed. This view was followed in Gopalaratnam v. Lakshmikantam AIR 1943 Mad. 569 . In Venkatakrishna Reddi v. Krishna Reddi AIR 1926 Mad. 586 decided by a Full Bench of the Madras High Court, this question was left open, the point actually decided being, that no appeal lay against an adjudication under O.22 R.5. The only decision to which my attention was invited, which has struck a discordant note, is Shakuntala Devi v. Kashmir Chand, AIR 1961 Punjab 184 but even here, the view that the declaration of abatement is a decree was not doubted, the appeal against such declaration in the particular case, being held to be incompetent, as the application to prosecute the suit had been dismissed and no appeal had been preferred against such dismissal; this however is a different point. So in view of the decisions referred to above, I hold that the judgment of the Munsiff dated the 27th June, 1959, was a decree and was appealable.