NOAI CHOWKIDAR Vs. OFFICIAL TRUSTEE OF BENGAL

JUDGEMENT

(1.) THIS is a rule calling on the opposite party to show cause why the order of the lower appellate Court complained of should not be reversed and the sale set aside as prayed for in the petition. The rule was prayed for on two grounds. But neither of them has been urged before us now. The only ground on which the rule is pressed is that the order of the lower appellate Court was passed in favour of a dead person, namely, Major Raily who died in England on 1 January 1928 and that, therefore, it is a nullity. The rule was obtained on 27th April 1928 against Major Raily of whose death neither party was aware and also against another person. There is no doubt that an order passed against a dead person would be a nullity, but there are authorities showing that where an order was passed in favour of a dead person, it is not altogether and in all circumstances a nullity. In the case of Vellayan Chetty v. Jothi Mahalinga Aiyar [1915] 39 Mad. 386, the practice in England on which our law is based is referred to. The learned Judges who decided that case in referring to the decision of Bowen, L.J., in Duke V/s. Davies [1893] 2 Q.B. 260 stated as follows: The learned Lord Justice points out that if a party is dead, the records stand good so far as the living parties are concerned; and that any disposal of the case notwithstanding the death of one of the parties will be valid subject to its being vacated at the instance of the legal representatives of the parson who had died.

(2.) THIS view also receives support from the rulings in Goda Cooperamier V/s. Soondarammal [1909] 33 Mad. 167 and Subramania Aiyar V/s. Vaithinatha Aiyar [1915] 38 Mad. 682. The rule is, therefore, discharged with costs to the official trustee who alone has entered appearance -- hearing fee one gold mohur.