ANNA TATOBA JADHAV Vs. ANNA BHAU CHOUGULE

JUDGEMENT

(1.) This is a civil revision application filed by the original respondents against the order passed by the learned Extra Assistant Judge, Kolhapur dated 10th March, 1981 admitting the appeal and holding that it is maintainable.

(2.) Late Shri Bhau Narsu Chougule, original plaintiff filed a Regular Civil Suit bearing No. 1006 of 1977 in the Court of the Civil Judge, (Senior Division), Kolhapur against the defendants for a declaration that the resolution date 24th July, 1976 passed by Shri Ram Shetkari Pani Puravatha Mandal (hereinafter referred to as "the Mandal") is illegal. In the said suit he asked for a further relief claiming a declaration that the cancellation of his membership of the Mandal was also illegal and, therefore, he is entitled to an injunction for restraining the defendants from making any change in the pipe line scheme by which his right of taking water under the scheme is put in jeopardy. The claim of the plaintiff was contested by the defendants. In this suit an application for temporary injunction was also filed. During the pendency of these proceedings Shri Bhau Narsu Chougule died on 8-12-1980. Therefore, present opponents filed an application under Order 22, Rule 1 of the Code of Civil Procedure for bringing them on record and adding them as party-applicants, they being the legal representatives of the deceased Bhau Narsu Chougule. This application was opposed by the present petitioners on the ground that the right to sue does not survive as the right claimed in the suit was a personal right of the deceased Bhau Narsu Chougule based upon his membership of the Mandal. After hearing both the sides the learned Judge of the trial Court came to the conclusion that as right to sue does not survive after the death or original plaintiff, the legal representatives have no right to proceed further with the sit. In this view of the matter, he dismissed the suit as abated.

(3.) Being aggrieved by this order the legal representatives of the deceased plaintiff filed an appeal before the District Court, Kolhapur. In the said appeal a preliminary objection was raised by the respondents, defendants, that the order passed by the trial Court does not amount to a "decree" and, therefore the appeal itself is not maintainable. After hearing both sides, the learned Second Extra Assistant Judge, Kolhapur came to the conclusion that by holding that right to sue does not survive, the Court has adjudicated upon and has conclusively determined the right of the appellants and, therefore, the,therefore the order amounted to a degree and hence the appeal was maintainable under Order 41, Rule 1 of the Code of Civil Procedure. It is against this order dated 10-3-1981 that the present revision application has been filed by the petitioners.