C. RAMAMURTHI Vs. KARUPPASAMI AND ORS.

JUDGEMENT

(1.) THESE two civil revision petitions are filed against the orders passed in I.A. No. 784 of 1975 filed for correcting the provision of law, and I.A. No. 265 of 1975 filed to bring on record the legal representatives of the fist defendant in the suit. The Court below had dismissed the petitions on the ground that the suit was filed on 14th November, 1974, on the basis of promissory note executed by the first defendant, whereas he died on 5th October, 1974, itself, and therefore a suit filed against a dead person is 'non est' and there can be no question of legal representatives being brought on record, Even if they are to be brought on record as legal representatives, the date of the suit will be the date on which they were brought on record and it will not date back to the date on which the suit was originally filed, i.e., 14th November, 1974.

(2.) THE counsel for the petitioner contends that so far as the I.A. No. 784 of 1975 is concerned, it was filed for correcting the cause title as "Petition under Sections 151 and 153, Civil Procedure Code" instead of as petition under Order 22, Rule 4, Civil Procedure Code, as originally filed. It is claimed that the petition was in fact filed invoking the provisions under Sections 151 and 153, Civil Procedure Code, and the mentioning of a wrong provision of law will not result in the petition being disallowed, as has been held by this Court and also by the Supreme Court. On this aspect, there could be no dispute, and hence the Court below was in error in rejecting I.A. No. 784 of 1975.

(3.) THE counsel for the petitioner contends that the Court below had not appreciated the correct position of law and he refers to the decision in Veerappa Ghettiar v. Tindal Ponnan, I.L.R. (1908) Mad. 86 :, 1908 17 M.L.J. 551; Kannagara Ismail v. Palayat Kappadakkal Povu Ammal : AIR 1955 Mad 644 Ranaj and Ors. v. Dinshaji Dadabhai Italia : AIR 1961 AP 239 Rastely Payya Lakshmamma v. Raja Manukanniah : AIR 1976 AP 65 and also to the amendment effected to Section 21 of the Limitation Act by adding a proviso to it, to show that a suit filed against a dead person, cannot be 'non est' and if the legal representatives are brought on record subsequently, the date of filing of the suit will not be the date on which the petition to bring on record the legal representatives was filed, but would be the date on which the original plaint was instituted. No doubt in Veerappa Chettiar v. Tindal Ponnan, I.L.R. (1908) Mad. 86 :, 17 M.L.J. 551, this Court had taken the view that a suit filed as against the dead person cannot be maintained and the Court has no jurisdiction to substitute the representatives of the deceased as defendants and allow the suit to proceed as against them. But later on, when the matter came up before this Court, in Kannagara Ismail v. Palayat Kappadakkal Povu Ammal : AIR 1955 Mad 644 Govinda Menon, J., referring to not only Veerabpa Chettiar v. Tindal Ponnan, I.L.R.(1908) Mad. 86 :, 17 M.L.J. 551 but also to the Full Bonch decision in (sic) Gopalakrishnayya v. Lckshmana Rao, I.L.R. (1926) Mad. 18 :, 23 L.W. 418 , and another decision held that under Section 153, Civil Procedure Code, the Court can under such circumstances permit the cause title to be amended or may return the appeal memorandum for amendment and re -presentation. The legal representatives may represent the dead persons and ask for excusing delay in presentation and it is a matter of discretion whether it would excuse the delay or not. On this aspect, the Full Bench in Gopalakrishnayya v. Lakshmana Rao, I.L.R. (1926) Mad. 18 :, 23 L.W. 418 , had dealt with the matter, which came up in appeal. The learned Judge held that the principle laid down therein can apply to the case before him and it would be applicable also to suits filed as against the legal representatives of a dead person. The three decisions of the Andhra Pradesh High Court have rested on the powers conferred under Section 153, Civil Procedure Code and have chosen to follow the decision rendered by Govinda Menon, J., and it has been held that the decision in Veerappa Chettiar v. Tindal Ponnan, I.L.R. (1908) Mad. 86 :, 17 M.L.J. 551 does not bring about the correct position of law. The earlier decisions have been rendered prior to the amendment to the Civil Procedure Code and also to the amendment effected to Section 21 of the Limitation Act. The decision rendered by the, Supreme Court in Ramprasad v. Vijayakumar : AIR 1967 SC 278 in my opinion virtually, decides the point that arises for consideration in these civil revision petitions. In paragraph 19 it refers to the powers of the Court to add a new plaintiff at any stage of the suit in the absence of the statutory provisions like Section 22 of the Limitation Act of 1908 and that Section 22 stood in the way of the powers of the Court. The Supreme Court observed that: