AMERICAN BAPTIST FOREIGN MISSION SOCIETY, BY ITS ATTORNEY REV W L FERGUSON; JALADI AYYAPPASETI AND GURRAM SESHIAH Vs. AMALANADHUNI PATTABHIRAMAYYA

JUDGEMENT

(1.) WE accept the finding of the Subordinate Judge and in modification of his decree direct that the 1st defendant be allowed to retain possession of item No. 1 in the plaint schedule and that he be directed to pay to the plaintiff respondent the sum of Rs. 3,600, less Rs. 300 found binding on the plaintiff, with interest thereon at 6 per cent. from the date of the plaint till the date of payment. Each party will bear his own costs in this Court, including the costs of the finding called for. Plaintiff is entitled to his costs against the 1st defendant in the Court below. In other respects the decree of the Subordinate Judge is confirmed. Appeal No. 368.

(2.) ON the merits we think the Subordinate Judge has come to the right conclusion. The evidence has been discussed by him fully and we see no reason to differ from him. At the last moment an argument was advanced to the effect that the decree against the appellant is a nullity. The facts bearing on this point are these: The case was argued after evidence was let in on the 19th of April 1916. It was adjourned to the 26th for further arguments. ON the 20th, 14th defendant died: no legal representative of his was brought on the record and judgment was delivered on 3rd May, holding among other things that the alienation in favour of the 14th defendant was not binding on the plaintiff. The present 2nd appellant is the legal representative of the deceased 14th defendant. It is contended on her behalf that the decree passed behind her back after her husband s death was without jurisdiction and we are con- strained to uphold this contention. Before Order XXII, Rule 6, was enacted it was held by this Court in Raghunatha Thatha Chariar v. Venkatesa Tauker 26 M. 101 : 12 M.L.J. 435 that a judgment pronounced after the argument was closed must be taken to speak not from the date on which it was actually pronounced but from and on the date that the judgment was reserved after argument. Order XXII, Rule 6, gives legislative sanction to this view of the law. After the new rule was enacted, it was held in Subramania Aiyar v. Vaithinatha Aiyar 31 Ind. Cas. 198 : 38 M. 682 that a judgment pronounced under similar circumstances would be a nullity: Vide also Vishvanath Dnyanoba v. Lallu Kabla 4 Ind. Cas. 137 : 11 Bom. L.R. 1070 and Narendra Bahadur Chand v. Gopal Sah 20 Ind. Cas. 506 : 17 C.L.J. 634 Mr. Ramadoss contended that, the spirit of Order XXII, Rule 6, will be satisfied, if the 14th defendant s arguments were heard before his death although the other parties had not concluded their, arguments. We are enable to accept this contention. Order XX, Rule 1, to which the learned Vakil for the appellants drew our attention, contemplates that all the arguments should be heard before the case can be regarded as ripe for judgment. The view of the Judical Committee in Radha Prasad Singh v. Lal Sahib Rai 13 A. 53 : 17 I.A. 150 : 5 Sar. P.C.J. 600 : 7 Ind. Dec. (n.s.) 33 is also to the same effect. We must, therefore, hold that the decree passed against the 2nd appellant was made without jurisdiction, That decree must be set aside and the case should be remanded to the Subordinate Judge so far as the 2nd appellant is concerned. The lower Court will have to deal with any application that may be made to it to bring in the legal representative of the 14th defendant. The costs will abide the result. The appeal so far as the 11th defendant is concerned is dismissed with costs.