BAPU Vs. GULABCHAND

JUDGEMENT

(1.) THE point referred for the decision of the Full Beach by the order of reference made by Prideaux, A.J.C. is whether Rule 4, Order 22, Civil P.C., or Rule 10 thereof, applies in a case in which the death of the defendant occurs between the passing of the preliminary and final decrees in a snit. This Court's reported decision in Tularam v. Tukaram A.I.R. 1921 Nag. 32 favours the view that Rule 10 applies and that there is no abatement of the suit in such a case.

(2.) THE point has been discussed at great length before the Full Bench. Having considered the cases cited by the counsel on each side, I am of opinion that the view taken by this Court in Tularam v. Tukaram A.I.R. 1921 Nag. 32 is good law, as it has the support of the ruling of their Lordships of the Privy Council in Lachmi Narain v. Balmukund A.I.R. 1924 P.C. 198 and is in accord with the view taken in Lukhpati Kuar v. Daulatsingh A.I.R. 1927 Oudh 156and in the Full Bench decision of the Madras High Court in Perumal Pillai v. Perumal Ghetty A.I.R. 1928 Mad, 914 where the whole case law has been discussed.

(3.) (After stating the order of reference the judgment proceeded). The facts of the case are not disputed and may be briefly stated. A preliminary decree for foreclosure was passed on the 30th October 1920 in favour of Sobhagmal, Ramaji, Krishnaji, Venkappa and Narayan against Sadasheo. The decresholders Narayan, Ramaji and Sobhagmal died and the names of the first two were struck off from the record as they were represented by the decree-holders already on record. Upon Sobhagmal's death his widow Tulsabai was brought cm record and the decree-holders then remaining were Tulsabai, Krishnaji and Venkappa. Sadasheo paid part of the decretal amount and time was extended up to December 1923. No further payment appears to have been made. Meanwhile Tulsabai died and the judgment-debtor Sidasheo also died. On 7th September 1925 Gulabchand, who claimed to be the legal representative of Tulsabai, Krishnaji and Venkappa, made an application for making the decree final and also made another application that Gulabchand should be brought on the record in place of the decree-holder Talsabai, and that the present appellant Bapu should be brought on the record as the judgment-debtor in place of his deceased father Sadasheo The trial Court held that, as Sadasheo died on 4th November 1924, i.e., more than three months before the application was made, the suit had abated against his legal representative Bapu. The trial Court further held that the suit should be deemed to have abated as far as Gulabchand, the legal representative of Tulsabai, was concerned, as Tulsabai died on 3rd April 1924. The Sub-Judge based his findings on the view that the case was governed by Order 22, Rule 4, Sub-rule (3), and referred to the ruling in Narayan v. Mt. Dhudabai A.I.R. 1925 Nag. 299. On appeal, however, the District Judge has held that that ruling had no application and followed the ruling in Tularam v. Tukaram (1) holding that Order 22, Rule 10 applied and not Order 22, Rule 4; and that therefore the application was not barred, not did the suit abate against the legal representative of Sadasheo.