LAWS(PVC)-1942-1-68

BABUIE SHANTI DEVI Vs. KHODAI PRASAD SINGH

Decided On January 15, 1942
BABUIE SHANTI DEVI Appellant
V/S
KHODAI PRASAD SINGH Respondents

JUDGEMENT

(1.) The appellant Babui Shanti Devi is the daughter of Babui Bamsumeri Kuar who was impleaded as defendant 4 in a mortgage suit. A preliminary decree was obtained in the suit in the life time of that defendant who died on 15 October 1937. Thereafter the plaintiff applied for preparation of final decree and applied to substitute one Bhola Prasad as representative of the deceased Ramsumeri. This application appears to have been made on 22 December, 1939. Later on, the present appellant appeared on 30 August 1940 and objected that the property in suit having been a stridhan of Babui Bamsumeri had devolved on the appellant and she and not the son Bhola Prasad was the person to be substituted in place of Bamsumeri Kaar as her legal representative. The plaintiff did not object to these allegations and the appellant was brought on the record as defendant 5 on 9th September 1940. Thereafter on 23 September 1940, she put in her objection urging that no final decree should be prepared because the suit had abated and no application had been made for setting aside the abatement within the time prescribed by law. Another fact relied on as a ground for holding the suit to have abated was that plaintiff 1 had died and that not all of his representatives have been substituted in his place. The widow has not been joined as plaintiff but the sons have.

(2.) As regards the absence of the widow, this appears to be a purely technical objection without substance, the widow herself having filed a petition stating that she is not in possession of the properties of the deceased plaintiff nor does she desire any share in the family properties, and that she gets maintenance only from the sons of the original plaintiff 1.

(3.) As regards the consequence of the death of Bamsumeri, it was represented in the Court below that it was incumbent on the plaintiffs to substitute the appellant within ninety days failing which the suit would abate. This contention was negatived by the Subordinate Judge on the authority of the decision of this Court in Mt. Bhatia V/s. Abdus Shakur A.I.R. 1931 Pat. 57. That decision was passed on the principle of the Privy Council decision in Lachmi Narain V/s. Balmakund A.I.R. 1924 P.C. 198 and followed and approved the decision of a Full Bench of the Madras High Court in Perumal Pillay V/s. Perumal ChettyA.I.R. 1928 Mad. 914. The Privy Counoil decision referred to has laid down the principle: "After a decree has once been made in a suit the suit cannot be dismissed unless the decree is reversed in appeal." The Madras and Patna decisions following this have held that Rules 3 and 4 of Order 22, Civil P.C., do not apply in case of the death of a party after a preliminary and before the final decree. The result is that the subsequent arrangement for continuation of the suit must be considered to be governed by Order 22, Rule 10.