MUTHURAMAN CHETTIAR Vs. ADAIKAPPA CHETTY

JUDGEMENT

(1.) This second appeal raises a point of procedural law, namely whether the plaintiff can maintain this suit for a declaration that the judgment in A.S. No. 85 of 1924 on the file of the Ramnad Sub-Court and the proceedings subsequently taken on the basis thereof are null and void as against him or whether his only remedy is to apply to the Court which passed that decree to vacate it. That appeal arose out of a suit, O.S. No. 766 of 1918 on the file of the District Munsif's Court of Sivaganga which at later stages, by reason of transfers to different Courts, came to be numbered as O.S. No. 348 of 1922 and O.S. No. 412 of 1925, the last being the stage after the remand consequent upon the appellate decision in A.S. No. 85 of 1924. That suit had been instituted by the present defendant 1 claiming a half share in certain properties as against defendant 2 and one Muthuraman Chetty the grandfather of the present plaintiff. The District Munsif dismissed that suit but on appeal that decree was reversed and the suit was remanded to the Munsif's Court for passing a final decree in plaintiff's favour. Even while the suit was pending before the Munsif in the first instance, Muthuraman Chetti, the then defendant 1 died and his two sons, viz., this plaintiff's father and another were brought on record as his legal representatives as defendants 4 and 3. When the matter was pending before the appellate Court, the present plaintiff's father died in or about 1924. No Legal representative was brought on record in his place and the appellate Court reversed the lower Court's decree, perhaps in ignorance of the death. The plaintiff now contends that the decree passed by the appellate Court in reversal of the lower Court's decree, after the death of his father and without his legal representative on record, is null and void as against him.

(2.) The first Court dismissed this suit on the ground that the other son i.e., defendant 3 in that suit, who still continued on the record of A.S. No. 85 of 1924 had the same defence as the plaintiff's father, that both of them had been represented by the same vakil when the matter was before the Court of first instance, that this common defence was also urged before the Court of appeal, and that the case is governed by Order 41, Rule 4, Civil P.C., according to which one of several plaintiffs or defendants may obtain a reversal of the whole decree where it proceeds on a ground common to all. In the opinion of the learned District Munsif A.S. No. 85 of 1924 did not abate, by reason of the plaintiff's father's death. The lower appellate Court has confirmed his decree but on somewhat different grounds. In the opinion of the learned Subordinate Judge, the judgment passed by a Court even without a legal representative of a deceased party is not a nullity and hence cannot be set aside by a suit, but the legal representative who has not had a hearing can claim re-hearing, on the ground that he has been prejudiced. Reliance has been placed by the learned Subordinate Judge on Vellayan Chetty V/s. Mahalinga Ayyar 1916 Mad. 574 in support of this view and also on a passage from Black on Judgments cited in Goda Coopooramier V/s. Soondarammal (1910) 33 Mad. 167.

(3.) I may say at once that cases like Vellayan Chetty V/s. Mahalinga Ayyar 1916 Mad. 574 have really no bearing upon the question now in dispute, because, where the decision is in favour of a dead man the position is different from a case where the decision is against the dead man : see Subramania Iyer V/s. Vaithianatha Iyer 1916 Mad 656. As explained in Suryanarayana v. Joga Row 1930 Mad. 719 the principle underlying that class of cases is that a party who is alive and has been heard cannot take advantage of the death of his opponent and claim a rehearing. Whether the death of any party does not wholly put an end to the jurisdiction of the Court to give judgment, so far as he is concerned, whether in his favour or against him, is a larger question that need not be considered here. Some cases seem to go that length : cf. Viswanatha Duyanoba V/s. Lallu Kabla (1909) 4 I.C. 137.