MT. LAXMI BAI Vs. AMRITLAL

JUDGEMENT

(1.) 1. This is an application for revising an order passed by the District Judge, Amraoti, confirming the order of the first Court refusing to set aside an ex parte decree passed against the applicant on the basis of a mortgage-deed, dated 14th March 1924, executed by Bajabai, Laxmibai, Sakharam and Govind. The suit was filed against all the executants. The applicant Laxmibai is the daughter of Mt. Bajabai. Mt. Bajabai having died pendente lite, the plaintiff orally intimated to the Court that Mt. Laxmibai, the applicant, was the legal representative of the deceased Mt. Bajabai; this was done on 28th April 1930 within three months after her death. On that date Mr. Vaidya, pleader, who represented Mt. Laxmibai in the suit prayed for time to enable him to ascertain as to who was the legal representative of Mt. Bajabai. On 8th May 1930, one of the plaintiffs died and the surviving plaintiff was stated to be the sole representative. At the next hearing on 16th June 1930, Mr. Vaidya made a statement in the Court to the effect that the applicant Laxmibai was the legal representative of Mt. Bajabai. The Court thereon ordered Bajabai's name to be struck off as dead noting at the same time that Mt. Laxmibai was the legal representative. On 12th July 1930 Mr. Vaidya withdrew all the contentions which had already been made by the defendants including Laxmibai, against the plaintiff's claim except as to the interest being of a penal character.

(2.) AFTER this statement the Court proceeded to judgment. It was delivered on 14th July 1930. On 16th August 1930 the applicant Laxmibai made a written application to the Court for setting aside what she described as an ex parte decree passed on 14th July 1930. Her sole plea was that she did not receive any notice of her being made the legal representative after the death of Mt. Bajabai and that proceedings against her should be deemed to have been ex parte. This application was dismissed in the two Courts below. Hence this revision petition. On behalf of the applicant reliance is placed on Balaramier v. Vasudevan AIR 1929 Mad 802, and strenuously contended that the suit being in suspense on account of the death of one of the plaintiffs, Bajabai, legal representative could not be brought on record. The cited case has no bearing on the facts of the present case as in that case the decree was passed while the Court was ignorant of the death of one of the parties without any legal representative having been brought on record. Stress is laid on the observation made in the course of that judgment in the case that a legal action, on the death of a party to it, passes into a state of suspense, which itself, if the legal representative is not brought on record within time, passes into a state of abatement, and that while the action is in a state of suspense, no valid act, which is not purely formal or processual, but involves a decision on the merits of any part of the action, can be done by the Court. These observations are relied on as supporting the proposition that so long as the legal representative of the deceased plaintiff is not brought on record the Court is divested of its power to bring a legal representative of the deceased defendant on record. I can understand the plaintiff's legal representative who was subsequently brought on record raising this contention, if he had any objection to Laxmibai being substituted as a legal representative of Bajabai, but I fail to see how Laxmibai's objection is, tenable.

(3.) ORDER 22, Rule 4, runs as follows: Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.