B THAVASIMUTHU NADAR Vs. RTHAVASIMUTHU NADAR

JUDGEMENT

(1.) This is an appeal from the order of Beasley, C. J., dated 14 November 1929 dismissing an appeal from the order of the Master dated 15 October 1929 refusing the appellant leave to file a written statement in O.S. No. 655 of 1921. The facts of the case are as follows. The suit was filed in July 1921. There was a preliminary decree on 18 January 1924. Th(c)-present appellant was born on 2 February, 1924. Defendant 1, the appellant s-father, became a lunatic some time in. 1929 and on the application of the appellant he was allowed to be impleaded in the case as a defendant by Kumaraswami Sastri, J. This was on 19th February 1929. But in that order Kumaraswami Sastri, J., said: "He must take. matters as they stood when the preliminary decree was passed." This practically precluded him from filing any fresh; written statement. Defendant 1 died oft 5th July 1929. The respondents filed an application to record the fact that the appellant would be the legal representative of the deceased defendant 1. This was ordered on 19 August 1929. The present application was filed on 6 September 1929 to receive a fresh written statement on behalf of the appellant who was impleaded as defendant 12. The Master refused this application and on appeal Beasley, C. J., dismissed the appeal. Hence the appeal before us.

(2.) One of the points raised by the respondents before us is that an appeal against this order does not lie and a decision in Imambandi V/s. Mutsaddi A.I.R. 1918 P.C. 11, is relied on. So far as I am concerned, if there is any other point on which I. can dispose of the appeal I would leave this objection alone and would not prefer to rest my judgment upon the-decision of this question. Coming to the merits, seeing that the appellant had. been already made a party in February 1929, the application in August 1929 is undoubtedly an application under Order 22, Rule 2 and not an application under Order 22, Rule 4. That being so, the appellant would not have a right to file an additional written statement by reason of the fact that he was noted on record as the legal representative of the deceased defendant 1 in August 1929. But it may be said that he had a right to file an additional written statement when he was originally brought into the record i. e., in February 1929. Kumaraswami Sastri, J., held that he must take matters as they stood on the record at the date of the preliminary decree. If this order is erroneous the remedy of the appellant was to have appealed against that order.

(3.) But apart from this view which may be regarded as a technical view, there is another ground on which it may be held that the appellant had really no right to file any additional plea. It is true that a Hindu's son would in general have the right of questioning the nature of the father's debt either in execution or in a separate suit and after the insertion of Section 53 in the new Code of Civil Procedure the question can be raised by a son after decree. The judgment of Lord Hobhouse in Nanomi Babuasin V/s. Modhun Mohan [I886] 13 Cal. 21, shows that a Hindu's son has always such a right, but it is subject to the qualification that he was in existence at or before the time when the decree against the father was passed.