GODA COOPURAMIER Vs. MSUNDARAMMAL

JUDGEMENT

(1.) A decree was passed by the High. Court on the 8 September 1891, in favour of the plaintiff in Civil Suit No. 186 of 1891, one Ramakkammall, against Appukuttichetty, the defendant in that suit. The present plaintiff, the representative of Ramakkammall now sues the defendant, the widow of Appukuttichetty, on the same cause of action, for the same relief that was therein granted. The plaintiff alleged and proved in the lower Court that Ramak kammall, the plaintiff, died in the morning of the 8 September, 1891, and the suit was taken up, heard and disposed of the same day after her death. He alleges-that the decree is, therefore, a nullity and not a bar to this suit.

(2.) The finding that the plaintiff in the prior suit died before the hearing is not contested before us. The question for decision is, whether the suit is maintainable or not. Under the English Common Law the death of a plaintiff or a defendant causes an action to abate. After the death of either of them, therefore, no judgment can be passed and no execution can issue. Where, however, the death of the party occurred after the hearing of the case, then in the Courts of Common Law the judgment was entered as on the date when the judgment was reserved on the principle that the party ought not to be prejudiced by the delay arising from the act of the Court. Similarly where a judgment was signed at 11 A. m., the usual hour, and the defendant died at 9-30 the same morning the judgment was held regular on the principle that judicial proceedings are to be considered as taking place at the earliest period of the day on which they are held Wright V/s. Mills 4 H. and N. 488.

(3.) In Bombay it has been held that this procedure ought to be followed and that a decree speaks from the day the judgment was reserved and binds all parties then before the Court and the representatives of those dying in the interim; see Narna V/s. Anant 19 B. 807 and Ramacharya V/s. Anantacharya 21 B. 314 and the entry of the date of delivery was only treated as an irregularity. Secs.202 and 205 of the Civil P. C. (Act XIV of 1882) seem to be opposed to this view. But Act V of 1908 properly enacts that the judgment is to bear the date of delivery but effect is to be given to it as if it had been pronounced before the death took place (Order XXII, Rule 6).