NACHIAPPA GOUNDAN Vs. PONNUSAMY NAICKER

JUDGEMENT

(1.) The Additional District Munsif s Court at Salem passed an order under Section 182 of Act XIV of 1882 (Order XVI Rule 4 of Act V of 1908) for payment of batta which is recoverable as in execution under Rule 13 of Order XVI of the Code of Civil Procedure.

(2.) The petition in execution was transferred to the Principal District Munsiff s Court. Subsequently the party against whom the order had been made died and a suit was filed in the same Court against his legal representative who appeared and objected that the matter was one for execution and that under Section 50 of the Code of Civil Procedure he could only be brought in by the Court that passed the order. The District Munsif under Section 47 of the Code of Civil Procedure decided to treat the suit as an execution petition and the legal representative as a party to it and proceeded to make an order against him. I agree with the District Judge that this was wrong as the legal representative had not been brought in under Section 50 C.P.C. and the fact that he appeared and objected to the suit and to the right of the Court to bring him in shows that he never waived his right.

(3.) The petitions are dismissed with costs.