SUDERSHAN Vs. CHAMAN LAL

JUDGEMENT

(1.) THIS revision is directed against the order of the Addl. District Judge at Srinagar who held that an appeal preferred by the petitioner to him was incompetent.

(2.) A few facts may be stated to bring to the fore the point in dispute between the parties. The petitioner had instituted a suit for partition against his brother Balbhadar and obtained a preliminary decree. Subsequently, Balbhadar who was the sole defendant in the suit died and one Chaman Lal applied for leave to continue the suit as a defendant on the ground that he was the adopted son of deceased Balbhadar. The petitioner -plaintiff contested the claim of Chaman Lal to come in the place of deceased defendant Balbhadar. The trial Court held an inquiry as to whether Chaman Lal was the adopted son of Balbhadar as claimed by him and came to a conclusion in his favour and consequently granted him leave to continue the suit as a defendant. The plaintiff who was aggrieved preferred an appeal to the Addl. District Judge challenging the correctness of the order of the trial Court. A preliminary objection was taken before the appellate court that the appeal did not lie because the order of the trial court fell within the purview of r. 4 of O. 22 of the Civil P. C. This contention found favour with the Addl. District Judge who dismissed the appeal on the ground that it did not lie. The plaintiff has now come up in revision to this court to canvass the correctness of that decision.

(3.) THE short point for determination is whether the matter is governed by r. 4 of O. 22 as contended by the respondent or by r. 10 of that order as contended by the petitioner. R. 4 (1) of O. 22 Civil P. C. applies to a case where on the death of a sole defendant "the right to sue survives." I think the word "right to sue" must be interpreted in their ordinary meaning, namely, the right to obtain relief by means of legal procedure. But when the relief sued for has already been obtained, there can be no question of the right to sue surviving on the death of the plaintiff or the defendant.