GOLLA KRISHNA MURTHY Vs. GOLLA YELLAIAH

JUDGEMENT

(1.) This Second Appeal has come up before us by virtue of an order of reference made by the learned Single Judge. The plaintiff had filed a suit for declaration of title and recovery of possession. The suit had been decreed. The defendant filed A.S.No. 48 of 1995. In the appeal judgment was pronounced by the Court upholding the judgment of the trial Court. The judgment was delivered by the appellate Court on 7-10-1995. In the Second Appeal filed thereafter by the defendant a ground was taken that the first appeal had been heard on 12-9-1995 although the respondent i.e., the plaintiff had died on 3-9-95 and therefore the judgment in the appeal was a nullity in view of Order 22, Rule 6 of the Code of Civil Procedure. The learned Single Judge referred to a judgment of this Court reported in V. Appalanaidu v. P. Demudamma. After quoting a paragraph from the said judgment the learned Single Judge expressed his doubts about the correctness of the law laid down in the judgment and therefore referred the matter to the Division Bench.

(2.) We have gone through the judgment (supra) and we have also heard the learned Counsel for the parties.

(3.) Now the question before us is as to whether the judgment delivered in an appeal which was heard after the death of a party was a nullity, or not. The learned Single Judge of this Court in the judgment supra has taken a contrary view. While analyzing Order 22 of the Code of Civil Procedure Justice P.A. Choudary was of the view that, in a case in which arguments were heard when one of the parties was dead it would not be a nullity. Taking into consideration all the rules of Order 22 C.P.C. the learned Judge came to the conclusion that a suit or an appeal does not abate till the time granted for bringing on record the legal representatives expires. Therefore, by legal fiction ever after the death of a party the suit or appeal survives atleast till the time provided under law for bringing on record the legal representatives expires. With our profound respects to the views of the learned Judge, we are unable to agree with this reasoning. It is not a question as to whether an appeal survives after the death of a party, or not. The question is, whether the parties were represented at the time of arguments or hearing of the case. If a party dies before the matter is finally heard and argued before the Court the advocate who appears for a dead party, is appearing, in fact, for nobody. By fiction of law the suit or appeal may be surviving even after the death of the party for a particular period of time, but the authority of the Advocate ceases immediately after the death of a party. In an adversial system of litigation it is the parties who have the right to put forth their case before the Courts and this right of the parties cannot be taken away by giving any interpretation to Order 22 to suit such a line of thinking. The framers of the Code of Civil Procedure have been conscious of this fact. Therefore by virtue of Rule 6 oi Order 22 it is laid down that a judgment car be delivered if a party dies after the hearing Rule 6 of Order 22 lays down;