SUBBARAYA MUDALIAR Vs. KANDASWAMY MUDALY

JUDGEMENT

(1.) Besides the decree that the plaintiff should recover the suit property from the purchaser, there was a common decree for costs in Original Suit No. 430 of 1917 against the we defendants, viz. the decree-holder in Original Suit No. 402 of 1916 and the auction-purchaser at the sale which took place in execution of that decree. The decree-holder and the auction purchaser filed a common appeal and the first Court's judgment was reversed, although one of the appellants (the auction-purchaser) was, at the time of the appellate judgment, dead and his legal representatives had not been brought on record.

(2.) It is contended that the appeal had abated, that the Court had no power to pass any decree in favour of the deceased appellant, and that the judgment and the decree were nullities.

(3.) In Somasundaram Chettiar V/s. Vaithilinga Mudaliar 41 Ind. Cas. 546 : 40 M. 846 : 6 L.W. 253 and in Artho Rama Rahu V/s. Artho Padhi 20 Ind. Cas. 952 : 25 M.L.J. 248 : 14 M.L.T. 177 : (1913) M.W.N. 587 it has been held that under Order XLI, Rule 4 of the Code of Civil Procedure, 1908, an Appellate Court has power to reverse a judgment in favour of a deceased defendant as regards the whole of the plaintiff's claim and not only as regards that part of it in which the surviving defendant or defendants were particularly interested.