SUPPU NAYAKAN Vs. PERUMAL CHETTY

JUDGEMENT

(1.) The appellant was the plaintiff in O.S. No. 178 of 1911 on the file of the District Munsif s Court of Dindigal. The only defendant in the suit died in March 1912. On the 15th April 1912, the plaintiff applied to bring in the defendant s son Peru trial Chetty on the record as the defendant s legal representative. He failed to mention the order and rule of the Civil Procedure Code, under which the application was filed. On the 23rd April 1912 the Court returned the application to him for amendment giving him three days time to take it back, amend and represent it. The District Court transferred the suit about the end of April 1912 to the District Munsif s Court of Melur for disposal. The records were sent away from the District Munsif s Court of Dindigal accordingly to the District Munsif s Court of Melur but retaining the above application (which was not taken back by the plaintiff for amendment and re-presented). The other records were sent away from the District Munsif s Court of Dindigal on 25th May 1912 and the suit was numbered 0. Section No. 634 of 1912 on the file of the District Munsif s Court of Melur. The plaintiff s application which he had been ordered to take back seems to have been sent to the District Munsif s Court of Melur separately in October 1912. Then on the 13th November 1912 the plaintiff put in a petition in the Melur District Munsif s Court to excuse the delay in taking, back, amending and representing the application. The petition was ordered without notice having been sent to the respondent (the deceased...defendant s son) and he was brought on the record and was designated as the 2nd-defendant in the case. When summons was served on him, he contended that the suit had abated in September 1912 on the expiry of six months from his father s death, that the plaintiff had no right after the suit had abated to put in any application in the suit other than an application to set aside the abatement as the suit must be taken to have come to an end on the abatement and that the order of the Court extending time for representing the application to bring in the legal representative and directing the legal representative to be brought on record was passed without jurisdiction. Thereupon an additional issue was framed in the suit, namely, "Whether the suit should abate for the reasons given in the written statement of the2nd defendant"? 2 The District Munsif decided this issue in the 2nd defendant s favour and dismissed the suit with costs on 17th March 1913. 3 The plaintiff then filed C.R.P. No. 513 of 1913 under Section 115, C. Procedure Code in this Court. Mr. Justice Ayling dismissed the revision- petition on the ground that the decree of the District Munsif was appealable and hence no petition lay under Section 115 of Act V of 1908 to the High Court. 4. This Letters Patent Appeal is against the above order of the learned Judge, the grounds of appeal being:

(2.) The learned Judge erred in holding that the order sought to be revised was a decree and hence appealable.

(3.) The learned Judge failed to n6te that the order in question did not conclusively determine any of the rights of the parties in controversy in this suit and as such was not a decree within the meaning of the Civil Procedure Code of 1908.