SHANKARNARAINA SARALAYA Vs. LAXMI HENGSU

JUDGEMENT

(1.) This is an appeal preferred against the order of the Subordinate Judge of South Kanara refusing to set aside the order of abatement in A.S. No. 151 of 1926 on his file. It appears that two independent appeals were filed against the decree of the first Court passed in the suit, one appeal being by the plaintiff and the other appeal by the 2nd defendant In the appeal filed by the 2nd defendant, the legal representatives of the respondent, namely, the plaintiff, not having been added within the time prescribed by law, there was an abatement and, when that abatement was sought to be set aside, the Lower Court found that there was no ground for allowing the petition on the merits and dismissed it.

(2.) The point now taken in this appeal is a pure question of law. It is argued that, because the legal representatives of the appellant in the other appeal (who is no doubt the plaintiff in the suit) have been added within the time allowed, it should be taken that those legal representatives have also been added in place of the deceased respondent in this appeal. There is no authority directly bearing on the question that arises in this appeal. There is no interdependence between these two appeals and the analogy of an appeal and a memorandum of objections in the same appeal does not hold good in the present case, where we have to deal with two separate and independent appeals" though arising from the same suit. The decision in Vathiar Venkatachariar V/s. Ponnappa Aiyangar (1918) 7 L.W. 614 relied on by the learned advocate for the appellant does not seem to help him in this case. In that case, though the legal representative of the deceased respondent was not added in the appeal within the prescribed period of time, that legal representative came into Court with a memorandum of objections in connection with that appeal. The learned Judges held that the rule requires that a person should be a respondent in the appeal in order to entitle him to file cross-objections and, therefore, when the legal representative of the respondent was allowed to come on the record in connection with the memorandum of objections, he was in effect made respondent in the appeal also. On this special ground, it was held that there was no abatement of the appeal. In. the present case when there are two independent appeals, the principle of the aforesaid decision cannot reasonably be extended and, therefore, it is not possible to assume that the legal representatives of the respondent in the present appeal have been brought on record merely because they came to be added in the other appeal as the legal representatives of the deceased appellant. The decision in Krisinama Chariar V/s. Mangammal (1902) I.L.R. 26 M. 91 (F.B.) proceeded mainly on the meaning to be attached to the expression "final decree" in Art. 197 of the Limitation Act (XV of 1877) for the purpose of computing the starting point for limitation as regards an application for execution. The date of the final decree of the Appellate Court being the starting point for limitation, it was held that limitation should be computed from that date for executing any portion of the decree in the suit, though that particular portion of the decree was not the subject-matter of the appeal. I fail to understand how the view taken in that decision can be of any avail to the appellant in this case.

(3.) There remains the decision of the Privy Council reported in Brij Indar Singh v. Kanshi Ram (1917) L.R. 44 I.A. 218 : I.L.R. 45 C. 94 : 33 M.L.J. 486 (P.C.). In that case when an order on an interlocutory application passed during the course of a suit was made the subject of an appeal or revision in the Appellate Court and when the legal representative of the original plaintiff was brought on record in the Appellate Court as the death of the plaintiff occurred during the pendency of the matter before the Appellate Court, it was held that, when the suit had to be tried again by the first Court after the disposal of that appeal, no fresh application to bring in the legal representatives of the deceased plaintiff was necessary. Their Lordships have held that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages. When the subject-matter of the interlocutory application was pending in the Appellate Court, it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at a further stage of the suit when it came on for trial before the first Court. Can it be said in the present case that what was done in one appeal could enure for the benefit of another appeal, unless the latter appeal can be deemed to be a continuation of a further stage of the appeal m which the legal representatives were brought on record? I am constrained to say that it is difficult to extend the principle of the decision of the Privy Council to the facts of this case. Though the order of abatement in this appeal cannot be set aside, it is still open to this appellant who would be a respondent in the other appeal to ask the Appellate Court to exercise its powers under Rule 33 of Order 41, Civil Procedure Code and give any proper relief to him, if it is legally permissible to do so.