MARAPPA GOUNDAN Vs. VSUBRAMANIA IYER

JUDGEMENT

(1.) THIS is an application to revise an order passed by the District Munsif of Gobichettipalayam in O.S. No. 1162 of 1922. The suit was brought by the plaintiffs for the recovery of a half share of the suit property on payment of Rs. 30, their share of the mortgage amount, with mesne profits, from the defendants. There were originally three defendants. The property had been sold by the 1 defendant to Defendants Nos. 2 and 3 long prior to suit. The 1 and 2nd defendants remained ex parte and the 3 defendant appeared and pleaded that the 1st defendant was entitled to sell and that the plaintiffs had no share and that the suit ought to be dismissed. At the trial the Munsif held that the plaintiff's claim for a half share in the property was well-founded and gave a decree against all the defendants for partition of the property into two equal shares, and for plaintiffs being put into possession of one of such shares on their paying Rs. 30. It was also decreed that defendants do pay plaintiffs pas mesne profits and future mesne profits for a period of three years. Against this decree, the 3 defendant put in an appeal to the District Judge. But, sometime after the decree was passed, plaintiffs discovered that the 1 defendant had died five days prior to the date of the decree. Apprehending, therefore, that some difficulty might arise, so far as the claim against the 1 defendant was concerned in the case, they put in an application to have the legal representative brought on record and the case re- opened by the Munsif. The District Munsif accepting the plaintiff's explanation for not being aware of the death of the 1 defendant, allowed their petition and set aside the whole decree and re-opened the case not only as against 1 defendant's legal representatives but also against Defendants. Nos. 2 and 3. The 1 and 2nd defendants were originally ex parte in the case. The 3 defendant was alone contesting the case, and it is he who has come up here in revision and objects to the case being re-opened as against him for the purposes to get what relief he can by his appeal to the District Judge. If the order as to re-opening the case against all the defendants were to stand, he will have to wait till after the case is disposed of again and file a fresh appeal. It seems to me that the Munsif's order setting aside the decree against all the defendants cannot be supported. The property had passed to Defendants Nos. 2 and 3 by the sale by 1 defendant. That being so, the 1 defendant was not interested at all in the suit, so far as the claim for possession of the half share in the property is concerned. The only claim in which he might have been interested is the claim for mesne profits for the Munsif has passed a decree against all the defendants jointly for mesne profits. That is a matter in which it cannot be said that the defendants are so jointly interested that the absolving of one of them from liability to pay mesne profits would necessarily absolye the other defendants also. There is no connexion between the case of the 2nd and 3 defendants and that of the 1 defendant. I am of opinion that the order of the Munsif setting aside the decree originally passed against Defendants Nos. 2 and 3, as well as against 1 defendant, cannot stand; that he ought not to have set aside the decree against Defendants Nos. 2 and 3 at all and that he ought to have done so only against 1 defendant. There is no fear of any conflicting decision in this case. There are circumstances where such conflicts cannot be avoided. But those circumstances do not justify the reopening of a case against all the defendants. Some cases have been cited before me, from the Indian Cases, namely, Balaram Pal V/s. Kanysha Majhi [l910] 53 I.C.548, Kali Dayal V/s. Nagendra Nath [1920] 24 C.W.N. 44 and Sheikh Dendoo V/s. Sheikh Sachoo . The decision in Kali Dayal V/s. Nagendra Nath [1920] 24 C.W.N. 44, I think, puts.the matter correctly and I am prepared to adopt the view taken there. I am not prepared to agree with the ruling in Sheikh Dendoo V/s. Sheikh Sachoo , which seems to imply that in every appeal, if a respondent dies and no legal representative is brought on record, the appeal abates. I think the abatement of the whole appeal would depend upon the question whether the deceased person was such a necessary party that his absence from the record should lead to the dismissal of the appeal i self. In these circumstances, I must set aside the order of the District Munsif, so far as he allows the case to be reopened against Defendants No. 2 and 3, and direct him to proceed with afresh trial only as regards the legal representative of the 1 defendant.

(2.) THE petitioner will have his costs in the High Court against the plaintiffs, but I do not interfere with the order passed in the lower Court as to costs.