ABDUL RAHAMAN MIA Vs. BALAIPADO SETT

JUDGEMENT

(1.) Pralhad Mea executed a mortgage in favour of Mahadeb Shah on 24 March 1923. The due date of payment was 24 March 1925. Mahadeb died leaving a widow. In the year 1927 Mahadeb a widow brought a suit upon the mortgage against Pralhad. While the suit was pending the plaintiff who is a creditor of Mahadeb brought a suit against Mahadeb's widow for the realisation of a sum. due to him and attached the mortgagee's interest before judgment. On 8 September 1927, Mahadeb's widow died; her legal representatives were not substituted in her suit. On 27 March 1928, the plaintiff in his suit against Mahadeb's widow obtained a decree against the heirs of Mahadeb and on 26 April 1936, in execution of that decree purchased their interest in the mortgage. The plaintiff now brings a fresh suit upon the mortgage. Defendants 1 to 3 are the heirs of the mortgagor Pralhad and the pro forma defendants 4 and 5 are the reversionary heirs of Mahadeb. Defendants 1 to 3 resisted the suit on various grounds. The trial Court dismissed the suit. On appeal this decision has been reversed and the suit has been decreed. The defendants appeal.

(2.) The only ground now urged on their behalf is that the plaintiff cannot maintain this suit inasmuch as his predecessors-in-interest who are the heirs of the mortgagee were barred from instituting any suit on the mortgage by reason of the provisions of O.22, Rule 9, Civil P.C. This ground was in essence taken in the Courts below though in a some what different form. The contention on behalf of the appellants may be summarised thus: When Mahadeb's widow died pending the mortgage suit the reversioners should have been substituted as her legal representatives. As this was not done within the time stipulated by law the suit abated under Order 22, Rule 3 (2). They could not institute any fresh suit on the same cause of action as Order 22, Rule 9 expressly forbade the institution of such a suit. The plaintiff's purchase took place after the legal representatives had lost their right of suit upon the mortgage. He purchased the mortgagee's interest subject to this disability. He could not therefore maintain this suit upon the mortgage.

(3.) On behalf of the plaintiff-respondent, the argument is this: Order 22, Rule 9 has no application in this case. The suit was by a widow and when she died the reversioners to the estate of her husband were not her legal representatives. They had a right of suit on the mortgage which was not derived through her and was quite independent of her right. Such right could not be affected by the abatement of her suit. Order 22, Rule 9 prohibited a legal representative of the deceased plaintiff from bringing another suit on the same cause of action. The reversioners were not the legal representatives of Mahadeb's widow, and their cause of action was different from that of the widow. Order 22, Rule 9 therefore could not affect their right of suit and there was nothing to prevent the plaintiffs who derived title from them from suing upon the mortgage. In my opinion, the view urged on behalf of the appellants should prevail. When a plaintiff dies the suit abates for one of two reasons, viz., either because the right to sue does not survive or if the right survives because the plaintiff's legal representatives have not been substituted within the time allowed by law. The abatement for the first reason is under the general law and the abatement for the second reason is under the special provisions of O.22, Civil P. C, which says that the suit will abate if substitution is not made within time. Now where a suit abates because the right to sue does not survive, Order 22, Rule 9 does not apply. That rule runs thus: When a suit abates or is dismissed under this order no fresh suit shall be brought on the same cause of action.