VANTAKU APPALANAIDU Vs. PEDDINTI DEMUDAMMA

JUDGEMENT

(1.) This second appeal arises out of a judgment and decree passed by District Judge, Vizag in A. S. No. 156/77 confirming an order of the District Munsifs Court, Chodavaram, passed in I. A. No. 102/76 in O. S. 93/70, in the court of the District Munsif, Chodavaram, the aforesaid I. A. No. 102/76 was filed by the present respondents under Order 26, Rule 30 of the Civil Procedure Code, praying that they might be brought on record as the legal representatives of the deceased-plaintiff in O. S. No. 93/70 D. M. C. Chodavaram, and a final decree might be passed against the present appellants who were the judgment debtors in the aforesaid suit. The present appellants opposed that I. A. 102/76. But both the courts below granted the relief to the present respondents. The defendants judgment-debtors filed this second appeal complaining against the orders of the District Judge.

(2.) O. S. No. 93/70 on the file of the District Munsif, Chodavaram, was filed by the sole plaintiff for partition and separate possession of 1/4th share of the plaint schedule properties. To that suit, the present appellants wee added as the defendants. On context that suit was dismissed by the learned District Munsif on 30-6-71. The sole plaintiff appealed against that decree to the District Judge, Vizag in A. S. No. 201/74. Pending hearing of his appeal, the appellant dies on 2-10-75. But neither the appellants lawyer nor the respondents lawyer brought that fact of the plaintiffs death to the notice of the District Judge, Vizag presumably for the reason they did not themselves know about it. The Dist . Court, acting in ignorance of the fact of the sole appellants death, heard the arguments of the lawyers on either side on 3-10-75 and delivered his judgment on 10-10-75 allowing the plaintiffs appeal and decreeing the suit for partition and separate possession. Accordingly, a preliminary decree was drawn. Later on the deceased plaintiffs wife and the son filed ceased plaintiffs wife and the son filed the aforesaid I. A. 102/76 asking for passing of a final decree after bringing them on record as the legal representatives of the deceased-plaintiff. In the two courts below that I. A. was unsuccessfully opposed by the defendants judgment-debtors.

(3.) It is contended by the appellants in this second appeal that the decree and judgment of the appellate Court dated 10-10-75 passed after the death of the sole appellant is a nullity, because they say, the suit had abated with the death of the plaintiff and without his legal representatives being brought on record. The contention of the defendants all through has been that as the decree of the District Court dated 10-10-75 was a nullity it could not be execute and I. A. 102/76 should not have been allowed. 3.-A. Surprisingly, the state of law on abatement does not appear to be certain. Although the Civil Procedure Code is reasonably clear on the point the judicial decisions appear to the wavering and conflicting. It appears to me that the judicial pronouncement did not attach sufficient importance to the scheme of Order 22 and the vital changes it has brought about in the law of abatement.