Andhra HC (Pre-Telangana)
Kedarisetti Suryanarayana vs Kedarisetti Venkataraju on 16 March, 1993
Equivalent citations: 1993(2)ALT95
ORDER P. Ramakrishnam Raju, J.
1. The petitioner who is the defendant in O.S.No. 18/68 on the file of the District Munsif's Court, Pithapuram, filed this revision petition challenging the order made in I.A.No. 508/89 in O.S.No. 18/68 allowing the application to bring on record certain third parties as legal representatives of the seventh defendant. The said application was resisted by the petitioner herein.
2. O.S.No. 18/68 was filed for partition and separate possession of the plaintiff's share which was decreed on 27-2-1970 and final decree petition is pending. While so, the seventh defendant died on 13-5-1979. However, this application was filed after long gap of nearly 10 years under Order 1 Rule 10 C.P.C. to bring certain third parties as respondents in the final decree proceedings. The main objection of the petitioner herein, is mat after the death of the seventh defendant, L.R. application should be filed under Order 22, Rule 3 C.P.C. and if no such application is filed, the suit itself abates and no application under Order 1, Rule 10 C.P.C. is maintainable.
3. Rule 4 of Order XXII C.P.C. prescribes the procedure to be followed in case of death of one of several defendants or sole defendant, which is as follows :-
"Where one of two or more defendants dies and the right to sue does not survive against the surviving defendent or defendents alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit."
The words, "right to sue" have come for interpretation many a time in several High Courts in India. A Division Bench of the Madras High Court reported in Dakoju Subbarayadu v. Musti Ramadasu, AIR 1923 Mad. 237 (1), initially took the view that the right to sue obviously includes the right to proceed with the suit until the latter terminates and in the case of a mortgage-suit, where a preliminary decree and a final decree are both necessary, the right to sue must include the right to obtain a final decree after the passing of a preliminary decree. But, this view of the Division Bench did not hold the field for long in view of a later decision of the Privy Council, reported in Lachmi Narayan v. Balmakund, AIR 1924 P.C. 198. In the said decision, the Privy Council held as follows:-
"After a decree has once been made in a suit, the suit cannot be dismissed unless the decree is reversed on appeal. The parties have on the making of the decree acquired rights or incurred liabilities which are fixed unless or until the decree is varied or set aside."
Following the above Privy Council decision, a Full Bench of the Madras High Court reported in Perumal Pillai v. Perumal Chetty, AIR 1928 Mad. 914, held that the view expressed in Dakoju Subbarayudu v. Musti Ramadasu, AIR 1923 Mad. 237 (1), had been very much shaken by the Privy Council decision reported in Lachmi Narayana v. Balmakund, AIR 1924 P.C. 198, and therefore, following the Privy Council, the Full Bench held that the preliminary decree determines the rights of the party and that the rest, whatever it be, assessment of damages, working out of accounts and other things in the final decree are a mere subsequent defining of the effect that is to be given to the declaration of right which is contained and finally determined in the preliminary decree. The Full Bench overruled the view expressed by the Division Bench in Dakoju Subbarayudu v. Musti Ramadasu, AIR 1928 Mad. 914, and held that after the preliminary decree is passed, the provisions of Order XXII, Rules 3 & 4 C.P.C. do not apply to cases of death and as such, L.R. Applications need not be filedunder these rules.
4. The full Bench also considered the case reported in Chapman v. Day (1883) 48 L.T. 907, which is cited before the Full Bench for the view that in a case where a preliminary decree had already been passed, the right of action had already been determined before the death of the defendant and as such, the subsequent death of the defendant does not have any effect on the preliminary decree in which the rights of the parties are already determined. The view expressed by the Full Bench in Perumal Pillai v. Perumal Chetty, AIR 1928 Mad. 914, has been uniformly followed without any demur.
5. Therefore, bound as I am by the said decision, I am of the view that since the seventh defendant died after the preliminary decree was passed, an application to bring his Legal Representatives under Order XXII, Rule 3 C.P.C. need not be made, but an application under Order 1, Rule 10 C.P.C. to add the parties is maintainable. Therefore, the order of the lower Court is confirmed and the Revision Petition is dismissed, but in the circumstances, there shall be no order as to costs.