PINNAMANENI MADHAVA RAO Vs. KOLLI BASAVAYYA

JUDGEMENT

(1.) This is a revision petition under Section 115, Civil Procedure Code filed by the 1st Defendant, who was the petitioner in I.A. No. 645/1971 in O.S.No. 36/1959 on the file of the Court of the Subordinate Judge. Machilipatnam, seeking to revise the order of dismissal of the petition by the Court. The prayer in the said petition was that the suit should be dismissed as having abated due to the death of the 3rd defendant, one of the partners. The application was made when the Court posted the suit for the passing of a final decree.

(2.) The relevant facts giving rise to the present controversy may be stated. O.S. No. 36/1959 was filed by the plaintiff therein impleading defendants 1 to 25. The suit was for dissolution of partnership and settlement of accounts of a partnership in a rice mill styled as "Sri Rajeswari Rice Mill Contractors Company. The suit was dismissed by the trial Court. The plaintiff referred an appeal, A.S. No. 75/1961 on the file of the Court of the Additional District Judge, Krishna. The appeal was allowed on 4-3-1964 sad a preliminary decree was passed. It defined the shares of the plaintiff and the various other defendants. The preliminary decree also declared that the partnership stood dissolved on 20-12-1958 by efflux of time and ordered a settlement of accounts of the partnership from 20-12-1956 to 20-12-1958. A commissioner was appointed to settle the accounts. Against that decision passing a preliminary decree by the first appellate Court. Second appeal No. 661 of 1964 was filed in the High Court, dismissed the appeal on 9-11-1968, thereby confirming the decree passed by the first appellate court. The Commissioner who was appointed to look into the accounts, recorded the evidence and filed his report on 11-2-66. The second appeal to the High Court was preferred by three defendants. The 3rd defendant was the third appellant in the second appeal. During the pendency of the second appeal, the 3rd defendant died on 13-6-1965. The 3rd defendant left behind him his wife, sons and daughters. They were not brought on record in place of the deceased third appellant in the second appeal. This fact was not brought to the notice of the Court before the hearing and disposal of the appeal. After the filing of the report by the Commissioner on 11-2-1966, the suit was posted for the passing of a final decree on 27-8-1971 when 1st defendant filed I.A.No. 645/1971 urging that as the 3rd defendant died on 13-6-65 and as no legal representatives were brought on record is the second appeal, the suit itself had abated, and that therefore no final decree could be passed and that the report of the Commissioner arrived at without the legal representatives of the 3rd defendant being on record also was bad. The plaintiff was made the sole respondent to the petition. The lower court dismissed application on the ground that when once the preliminary decree was passed in the suit defining the shares of the various parties who were partners in the business and a direction regarding the settlement of accounts, was given, the death of the 3rd defendant during the pendency of the appeal did not cause the suit to abate. In support of his view, he relied upon the decision of the Madras High Court in Perumal Pillay v. Perumal Chetty, (1928) I.L.R. 51 Madras 710 (F.B.).

(3.) In this revision petition preferred by the 1st defendant, the order of the court below is sought to be attacked on the ground that on the death of the third appellant in appeal, the appeal itself as a whole had abated and the decree of the High Court confirming the preliminary decree was a nullity and that as the appeal was a continuation of the suit, it must be held that the suit itself inclusive of the preliminary decree had no legal existence, as the suit itself must be deemed to have abated. While the respondent's counsel appearing for the plaintiff in the main contended that even if the appeal had abated as a whole by reason of the death of the third appellant (3rd defendant in the suit), what abated was only the appeal and it did not further have the consequence of nullifying the preliminary decree passed by the appellate court. The preliminary decree which was competently passed in the presence of all the necessary parties continued and the final decree could be passed by the Court below at any time. Having record to the arguments before me, though they cover a wide ground, the two questions that fall for determination in this revision are.-