ADUSUMILLI GOPALAKRISHNAYYA Vs. BATTULA VENKATASWAMI

JUDGEMENT

(1.) The facts out of which this Second Appeal arises are as follows :--The appellants who are landlords brought three suits, O.S. Nos. 271, 272 and 275 of 1909 against various tenants for ejectment. They originally filed the suits in the District Munsif's Court, but the High Court finally held that the suits were not filed in the proper Court which was the Revenue Court and directed the plaints to be returned for presentation to the proper Court. There was an appeal to the Privy Council, Appeal No. 55 of 1916, in which the three cases were consolidated into one appeal. The decision of the Privy Council is reported in Suryanarayana V/s. Patanna (1918) ILR 41 M 1012 : 36 MLJ 585 (PC). We are not concerned in the present proceedings with the reasons of the Privy Council nor with their ruling itself. It would seem that pending the hearing of the Privy Council appeal, one Seshayya, defendant in O.S. No. 272 of 1909 died, and no legal representative was brought on record and the decision of the Privy Council was given without anybody representing Seshayya's interests on record before them. It is now argued by his legal representative, Venkataswami, who is the respondent before us, that this decision so far as his case is concerned, is a nullity as nobody represented his interests and as it was given against a dead man. The District Judge has given effect to this contention and disallowed execution against Venkataswami, Seshayya's legal representative.

(2.) On appeal it is brought to our notice that the case is exactly covered by the ruling of this High Court in Kalyani Pillai V/s. Thiruvenkadaswami Aiyangar (1924) ILR 47 M 618 : 47 MLJ 154 which followed the ruling of the Patna High Court in Deonandan Prasad Singh V/s. Janki Singh (1920) 5 Pat. LJ 314. These two decisions are based upon 3 and 4 William IV. c. 41, Section 23. That section seems to be fairly clear that even though a party before the Privy Council might have died pending the appeal the order made by the Privy Council in the case nevertheless has full force and effect and is to be carried out by the Courts in India. It is enacted: That in any case where any order shall have been made on any such appeal as last aforesaid, the same shall have full force and effect notwithstanding the death of any of the parties interested therein.

(3.) The second part of that section is not relevant here. It is ingeniously suggested by the learned vakil for the respondent that there is some misapprehension as to the meaning of this section by both the Madras High Court and the Patna High Court and that Section 23 should be read with Section 21 which talks about "Order and Decree" and he contends that Section 23 will not apply in the case of a decree as that section talks only about an "Order". I am unable to follow this argument. What we are carrying out here is the order of the Privy Council. The wording is: His Majesty having taken the said report into consideration was pleased by and with the advice of his Privy Council to approve thereof and to order as it is hereby ordered that the same be punctually observed, obeyed and carried into execution. Whereof the Judges of the High Court of Judicature at Madras for the time being and all other persons whom it may concern are to take notice and govern themselves accordingly.