MAHOMAD AYUB Vs. PURSHOTTAM

JUDGEMENT

(1.) IN this case the original plaintiff, Ramdas, died during the trial of his suit, his son Purshottam being., duly substituted in the plaint in his. place. Eventually, ex parte decree was passed against the present defendant-applicant on 26-8-1925. On 19-9-1925 the present applicant applied to the lower Court to have the ex parte decree set aside. Doubtless, by inadvertence, although the suit number and description were so far correctly given, the name of the plaintiff was shown as the original Ramdas" then deceased. The Judge of the lower Court summarily rejected the application to have the ex parte decree set aside, without considering it on the merits, on the ground that just as a suit brought against a dead parson is a nullity, so also the application to have the ex parte decree set aside was equally a nullity in view of the mis-description of the plaintiff in the application. The decision of Wallis and Miller, JJ., in Veerappa Chetty v. Tindal Ponnen [1908] 31 Mad. 86, was relied on in this connexion.

(2.) ON behalf of the non-applicant, the order of the lower Court has been supported on the ground that Section 141 of the Civil P.C., makes the procedure provided "therein for suits applicable so far as it can be made so in other civil proceedings such as we are concerned with in the present case.

(3.) THE position is, in my opinion, entirely different on the point of principle and law involved from that of a plaintiff who comas to Court for the first time and sues a defendant who is already dead. In such a ease, there is a fundamental defect of jurisdiction because, even at common law, the Courts have no jurisdiction to entertain a suit against a dead man. The mere fact of Section 141, Civil P.C., being on the statute book, does not, in my opinion, warrant the view arrived at by the lower Court; that provision is purely concerned with procedure. The legal principle that a dead man cannot be sued, is a point of substance altogether apart from procedure, and, in my view, the mere fact that a misdescription of the plaintiff was given in the application for setting aside the ex parte decree, was no reason for refusing to hear the latter application on the merits. The order of the lower Court, dated 3-2-1926, is accordingly set aside and the case will go back to that Court for disposal of the applicant's application, dated 19-9-1925, on the merits. Costs incurred in this Court by parties will follow the event.