BAI PANI VANKAR Vs. MADHABHAI GALABHAI PATEL

JUDGEMENT

(1.) A suit was filed by one Soma Parma, who was a minor, through his next friend. This suit was dismissed on 23-12-1950. By that time Soma had attained majority and he instructed his pleader on 21-1-1951, to prefer an appeal and he signed a vakalatnama in favour of the pleader on January 22. The pleader preferred the appeal on 29-1-1951. Prior to that date Soma died on 23-1-1951. On 16-3-1951, the present petitioner, who is the heir and legal representative of Soma applied to the District Court to substitute her name in place of Soma. That application was dismissed by the learned District Judge, and it is from that order that this revision application is preferred.

(2.) HOW, apart from authorities, I should have said that the appeal that was preferred, on 29-1-1951, was clearly a nullity. The appellant being dead, the pleader who preferred the appeal had DO authority to prefer any appeal and the vakalatnama signed in his favour had come to an end. If the appeal was a nullity, no order could be made in that appeal which would he an effective order, and therefore the learned District Judge was right in refusing to direct that the petitioner should be substituted in place of the deceased appellant. An effective order under Order 1, Rule 10, can only be made provided there is a suit or an appeal before the Court, but if the suit or the appeal is a nullity, then any order made in that suit or appeal is equally a nullity, and the learned Judge rightly relied on the decision of Mr. Justice Mulla in --'rampratab v. Gourishankar', AIR 1924 Bom 109 (A ). In that case the learned Judge was dealing with a suit filed by the plaintiff against the firm of the defendant's father. The defendant's father was the sole owner of the firm and he had died before the institution of the suit, and Mr. Justice Mulla held that the suit instituted was not merely against a wrong person but against no person at all and he points out at p. 111 that any order made in the suit allowing amendment of the plaint by substituting the legal representative of the deceased as defendant and allowing the suit to proceed against him is also a nullity.

(3.) MR. Sethna has relied on a judgment of the Madras High Court in --'gopala Kristnayya v. Lakshmana Rao', AIR 1935 Mad 1210 (FB) (B ). That is a judgment of a Full Bench, but before we turn to that judgment it is necessary to draw attention to an earlier judgment of that Court in --'veerappan Chetty v. Tincial Ponnen', 31 Mad 8g (C ). In that case Wallis and Miller JJ. took the view that there was nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even when the suit is instituted bona fide and in ignorance of the death of the defendant. With respect, I entirely agree with this view. What is said here about a plaint also applies to an appeal. Turning to --'gopala Kristnayya's case (B)', the Full Bench took the view that when there is an appeal presented against a person who is dead at the date of presentation, the Court has jurisdiction under Section 153 to permit the title 1o be amended. When we turn to the judgment with great respect, no reason is given why a view different from the view expressed in --'veerappa Chetty's case (C)', has been taken and the decision in --'veerappa Chetty's case (C)', is not even expressly overruled. What is overruled is another case reported in --'govindu Kaviraj v. Gauranga Saw', AIR 1924 Mad 56 (D ).