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Suppu Nayakan v. Perumal Chetty

Madras High Court

Feb 25, 1916

Judgment

Subsequent
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Structured Summary of the Opinion (Letters Patent Appeal concerning abatement and appealability)

Factual and Procedural Background

The plaintiff instituted Original Suit No. 178 of 1911 in the District Munsif's Court of Dindigal. The sole defendant died in March 1912. On 15 April 1912 the plaintiff filed an application to bring the defendant's son, Perumal Chetty, on the record as the defendant's legal representative, but the application failed to cite the specific order and rule of the Code of Civil Procedure under which it was filed. On 23 April 1912 the Dindigal Court returned the application for amendment and gave the plaintiff three days to take it back, amend it and re-present it.

The District Court transferred the suit around the end of April 1912 to the District Munsif's Court of Melur. Most records were transferred to Melur on 25 May 1912 and the suit was renumbered Original Suit No. 634 of 1912. The plaintiff did not immediately take back and amend the application; that application appears to have been sent separately to Melur in October 1912. On 13 November 1912 the plaintiff petitioned the Melur Court to excuse the delay in taking back, amending and re-presenting the application; that petition was ordered without notice to the deceased defendant's son and he was brought on the record as defendant 2.

When summons was served on defendant 2 he contended that the suit had abated in September 1912 upon the expiry of six months from his father's death, that after abatement the plaintiff had no right other than to move to set aside abatement, and that the Melur Court's order excusing delay and bringing the legal representative on record was passed without jurisdiction. An additional issue was framed: “Whether the suit should abate for the reasons given in the written statement of defendant 2.”

The District Munsif decided that issue in defendant 2's favour and dismissed the suit with costs on 17 March 1913. The plaintiff filed Civil Revision Petition No. 513 of 1913 in the High Court under Section 115 of the Code of Civil Procedure (Act 5 of 1908). Ayling, J., dismissed the revision petition on the ground that the District Munsif's decree was appealable and therefore no petition under S.115 lay to the High Court. The plaintiff then brought the present Letters Patent Appeal against Ayling, J.'s order.

Legal Issues Presented

Whether the order of the District Munsif dismissing the suit on the ground that it had abated is a decree within the meaning of the Code of Civil Procedure and therefore appealable.
Whether the High Court (Ayling, J.) erred in holding that the order sought to be revised was a decree and hence barred the plaintiff's revision petition under Section 115 of the CPC.
Whether an order excusing delay and directing that a legal representative be brought on record (after the statutory period) could be treated as passed without jurisdiction if the suit had already abated.

Arguments of the Parties

Appellant's Arguments (as presented in the opinion)

The order impugned was not a decree because it did not conclusively determine the rights of the parties in controversy; therefore it was not a decree within the meaning of the Code of Civil Procedure and was subject to revision under S.115.
The learned Judge (Ayling, J.) erred in holding that the order was a decree and hence appealable; the High Court should have interfered, at least on the ground there was no defence to the petitioner's contentions and that an appeal would only multiply proceedings.
Mr. K.S. Jayarama Aiyar (appellant's counsel) argued that the definition of "decree" in Section 2(2) applies only where the disposing order contains an express adjudication on defences or rights; orders disposing of suits on procedural grounds (e.g. dismissal for default) are not decrees for this purpose, and he relied on authorities from other High Courts for that proposition.

Respondent's/Defendant 2's Arguments (as presented in the opinion)

Defendant 2 contended that the suit had abated in September 1912 (six months after the defendant's death) and that after abatement the plaintiff had no right to present any application in the suit other than an application to set aside the abatement; consequently, the Melur Court's order bringing defendant 2 on record was without jurisdiction.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Visvanathan Chetty v. Ramanathan Chetty	Principle that where there is an appeal to the District Court and a second appeal to the High Court, Section 115 cannot apply.	Used to support the proposition that S.115 is not available where an appeal lies; cited to reject the fourth ground of appeal.
Subbiah Pillai v. Kailasam Pillai	Same principle as Visvanathan Chetty regarding the non-application of S.115 where an appeal lies.	Cited along with Visvanathan Chetty to show S.115 inapplicability where appeal routes exist.
Hamida Bibi (Plaintiff) v. Ali Husen Khan (Defendant)	Authorities from the Calcutta High Court cited in the opinion which support the appellant's contention (i.e., that such an order may not be a decree).	Recognized by the court as decisions supporting the appellant's view, but ultimately not followed by this Court.
Walayat Husain v. Ram Lal	Authority from the Allahabad High Court supporting appellant's contention.	Not followed; noted as contrary authorities from other High Courts but outweighed by Madras decisions relied upon by this Court.
Subbayya v. Saminadayyar	Held that an order declaring a suit to have abated is a decree from which an appeal lies.	Followed by the Court as precedent supporting that abatement/dismissal orders are decrees and appealable.
Meenatchi Achi v. Ananthanarayana Ayyar	Decision following Bhikaji Ramchandra that supports appealability of abatement orders.	Relied upon as part of a line of Madras decisions treating abatement as producing a decree.
Bhikaji Ramchandra v. Purshotam (also cited as Bhikaji Ramchandra v. Pushotam Sargent)	Held that an order under the old S.366 that a suit does abate was virtually a decree within the meaning of the statute and appealable.	Used as a foundational Madras decision establishing that abatement orders operate as decrees; this Court followed that reasoning.
Subramania Iyer v. Venkataramier	Held that an order declaring that the suit has abated because the cause of action did not survive was a decree under Section 2(2) of the CPC.	Specifically relied upon by the Court (judges who decided that case were referred to) and followed as authority that such orders fall within the definition of "decree".
Chanmalswami v. Gangadharappa	Decision settling controversy in the Bombay High Court about preliminary and final decrees (cited by appellant's counsel).	Noted by the Court as having limited relevance to the present question concerning the definition of decree for abatement orders.

Court's Reasoning and Analysis

The Court examined the statutory framework and earlier authorities and reached its conclusion by the following reasoning:

The Court acknowledged conflicting decisions from other High Courts (Calcutta and Allahabad) which supported the appellant's contention that an order declaring abatement might not be a decree. Those authorities (e.g., Hamida Bibi; Walayat Husain) were recognized but not treated as controlling for this Court.
The Court relied on a line of Madras decisions (Subbayya v. Saminadayyar; Meenatchi Achi v. Ananthanarayana Ayyar) following Bhikaji Ramchandra v. Purshotam which held that an order declaring that a suit has abated is effectively a decree from which an appeal lies. The Court regarded these Madras precedents as authoritative for the present matter.
The Court addressed the change in wording from the old Code (S.366 of Act 14 of 1882) to the new Code (Order 22, Rule 3 of the CPC). Under the old Code the Court "may pass an order that the suit shall abate"; under the new Code the text uses "the suit shall abate" so that abatement can occur ipso facto without a formal order. The Court held this change is not material in principle and does not prevent considering the abatement as producing the same effect as a dismissal.
The Court considered the analogous provisions (Order 22, Rule 8; old S.370) which treat the drawing up of an order dismissing the suit where a representative neglects to continue the suit as closely connected with abatement. From this, the Court inferred legislative intention that abatement and dismissal are closely connected, if not identical, and that a decree dismissing the suit should follow an abatement.
The Court addressed the appellant's argument (through Mr. Jayarama Iyer) that the definition of "decree" in Section 2(2) applies only where the order contains express adjudication on rights or defences and that purely procedural dismissals are excluded. The Court observed the new Code expressly excludes "order of dismissal for default" from the definition of decree—implying that, absent that exception, an order dismissing a suit (which determines the rights in controversy) would be a decree. Hence, the Court rejected the narrower view urged by the appellant.
The Court also noted that the power to finally interfere under Section 5 of the Charter Act is extraordinary and subject to legislative enactments; it declined to exercise that power to overturn the established approach.

In sum, the Court followed Madras precedents and recent rulings (including Subramania Iyer v. Venkataramier) that treat orders declaring abatement as decrees and therefore appealable; it rejected the appellant's reliance on contrary authorities from other High Courts.

Holding and Implications

Holding: The Letters Patent Appeal is dismissed. The Court held that the District Munsif's order dismissing the suit on the ground that it had abated is a decree within the meaning of the Code of Civil Procedure and is appealable; accordingly Ayling, J. was correct in dismissing the plaintiff's revision petition under Section 115.

Direct implications for the parties:

The District Munsif's decree dismissing the suit for abatement stands subject to the ordinary right of appeal (i.e., the decree was appealable and therefore the route of revision under S.115 was not open to the plaintiff).
The Letters Patent Appeal was dismissed with costs; the High Court did not disturb the District Munsif's decision that the suit had abated and been dismissed.

Broader implications discussed by the Court (as stated in the opinion):

The Court reiterated and followed existing Madras authority that abatement of a suit and the drawing up of a decree dismissing the suit are to be treated as closely connected and that an appeal lies against such a decree. The opinion noted conflicting views in other High Courts but did not adopt those views here.
The Court suggested (by way of comment) that the Rule Committee might clarify by rule that, where suits abate without a formal order, a decree dismissing the suit should be drawn up as on the date of abatement unless the abatement is set aside — but this was an observation and not part of the operative ruling.

No new legal principle contrary to the cited Madras authorities was established; the decision applies existing precedent to affirm appealability of abatement-derived dismissals.

Judgment delivered by Sadasiva Aiyar, J.; Moore, J. concurred. Appeal dismissed.

Show all summary ...

Sadasiva Aiyar, J.:— The appellant was the plaintiff in Original Suit No. 178 of 1911 on the file of the District Munsif's Court of Dindigal. The only defendant in the suit died in March 1912. On 15th April 1912, the plaintiff applied to bring in the defendant's son Perumal Chetty on the record as the defendant's legal representative. He failed to mention the order and rule of the Code of Civil Procedure, under which the application was filed. On 23rd April 1912 the Court returned the application to him for amendment giving him three days' time to take it back, amend and re-present it. The District Court transferred the suit about the end of April 1912 to the District Munsif's Court of Melur for disposal. The records were sent away from the District Munsif's Court of Dindigal accordingly to the District Munsif's Court of Melur but retaining the above application (which was not taken back by the plaintiff for amendment and re-presented). The other records were sent away from the District Munsif's Court of Dindigal on 25th May 1912 and the suit was numbered Original Suit No. 634 of 1912 on the file of the District Munsif's Court of Melur. The plaintiff's application which he had been ordered to take back seems to have been sent to the District Munsif's Court of Melur separately in October 1912. Then on 13th November 1912 the plaintiff put in a petition in the Melur District Munsif's Court to excuse the delay in taking back, amending and re-presenting the application. The petition was ordered without notice having been sent to the respondent (the deceased defendant's son) and he was brought on the record and was designated as defendant 2 in the case.

2. When summons was served on him, he contended that the suit had abated in September 1912 on the expiry of six months from his father's death, that the plaintiff had no right after the suit had abated to put in any application in the suit other than an application to set aside the abatement, as the suit must be taken to have come to an end on the abatement and that the order of the Court extending time for re-presenting the application to bring in the legal representative and directing the legal representative to be brought on record was passed without jurisdiction.

3. Thereupon an additional issue was framed in the suit, namely.

“Whether the suit should abate for the reasons given in the written statement of defendant 2.”

4. The District. Munsif decided this issue in defendant 2's favour and dismissed the suit with costs on 17th March 1913.

5. The plaintiff then filed Civil Revision Petition No. 513 of 1913 under Section 115 of the CPC, in this Court. Ayling, J., dismissed the revision petition, on the ground that the decree of the District Munsif was appealable and hence no petition lay under S. 115, Act 5 of 1908 to the High Court.

6. This Letters Patent Appeal is against the above order of the learned Judge, the grounds of appeal being:

“2. The learned Judge erred in holding that the order sought to be revised was a decree and hence appealable. 3. The learned Judge failed to note that the order in question did not conclusively determine any of the rights of the parties in controversy in this suit and as such was not a decree within the meaning of the Code of Civil Procedure of 1908. The learned Judge should have interfered at least on the ground that there is no defence to the contentions of the petitioner and that any appeal to the District Court would only multiply proceedings.”

7. The fourth ground cannot be accepted, as where there is an appeal to the District Court and a second appeal to the High Court, S. 115 cannot apply: see Visvanathan Chetty v. Ramanathan Chetty(1) and Subbiah Pillai v. Kailasam Pillai(2). As regards the other two grounds, there are no doubt observations in certain decisions of the Calcutta and Allahabad High Courts [see Hamida Bibi…(Plaintiff); v. Ali Husen Khan…(Defendant).*(3), and Walayat Husain v. Ram Lal(4)] which support the appellant's contention, but on the other hand this Court has held in Subbayya v. Saminadayyar(5), and in Meenatchi Achi v. Ananthanarayana Ayyar(6), following Bhikaji Ramchandra v. Purshotam(7), that an order declaring a suit to have abated is a decree from which an appeal lies. The appellant's learned vakil, Mr. K.S Jayarama Aiyar, has called our attention to the fact that whereas under S. 366 of the old Code, when a plaintiff died the Court had to pass an order that the suit shall abate if no application is made within the time limited by law, etc., under O. 22, R. 3, of the new Code the suit abates without, a formal order of the Court that the suit shall grate. But I do not think that this makes any difference in principle. Under the old Code, S. 368, when a defendant died and the right to sue survived but the plaintiff failed to make a proper application within the period prescribed, the suit abated without any formal order. It was only to make the wording of the provisions prescribed for the two sets of circumstances to conform with one another as for as possible that O. 22, R. 3, has used the words “the suit shall abate” instead of the expression in the old S. 366 “the Court may pass an order that the suit shall abate.” The practice in the Madras Courts so far as I know is that when the suit has abated, the Court also ipso facto dismisses the suit, that is, it takes it off from the file of the pending suits.

8. Though O. 22, Rr. 3 and 4, do not expressly state that the abatement of a suit is of the same effect as the dismissal of the suit, I think that is the meaning of the legislature and in Subbayya v. Saminadayyar there was a decree dismissing the suit drawn up on the abatement of the suit and against that decree the learned Judges held that an appeal lay. Again the analogous O. 22, R. 8, (old S. 370) states in Cl. (1) that the insolvency of a plaintiff shall not cause the suit to abate if the assignee or Receiver wishes to continue the suit and then in Cl. (2) it is said that if the assignee or Receiver neglects or refuses to continue the suit and the defendant applies for the dismissal of the suit, the Court may make an order dismissing the suit. Thus the abatement of the suit and the passing of an order which has the force of a decree dismissing the suit are treated as closely connected, if not identical, proceedings. I might, however, suggest that the Rule Committee might make it clear by the enactment of a rule that in cases where suits have abated without the necessity of a formal order, a decree dismissing the suit should be drawn up as on the date of the abatement, unless of course the abatement is set aside by appropriate proceedings. In Subramania Iyer v. Venkataramier(8), myself and Napier, J., held that an order of the Court declaring that the suit has abated owing to the cause of action not surviving, was a decree as it determined that the rights of the plaintiff ceased to exist on his death and, there fore, it fell within the definition of a decree,

“there being no appeal provided for in the Code from that order as an appeal from an order: See Excep. (a), Section 2, Clause (2) of the CPC.

9. Mr. Jayarama Iyer, however, argued that the definition of a decree in S. 2, Cl. 2, applied only where the order disposing of the suit contained an express adjudication on the defences raised by the defendant or the rights set up by the plaintiff, (defences not only on the merits but on technical questions like limitation or res judicata), but that where the adjudication of the suit had proceeded on mere questions of procedure (such as where the suit is dismissed for default, etc.) the order is not a decree within the definition. He relied upon several cases decided by the other High Courts for the establishment of this proposition. But as I said before this High Court has held that where the suit is finally determined by the order it is a decree, unless it is excepted specially or unless an appeal is provided for by the Code itself from such an order as an appeal from an order. In fact the new Code when it says that the definition of a decree “shall not include any order of dismissal for default” dearly implies that but for the exception so expressly enacted an order of dismissal for default would be a decree as it determines the rights of the parties with regard to the matters in controversy in the suit. The controversy as to preliminary and final decrees in the Bombay High Court which was sat at rest finally by Chanmalswami v. Gangadharappa(9), which was relied on by Mr. Jayarama Aiyar, has not much relevancy on this question of the definition of a decree. I, therefore, hold that Ayling, J., was right in dismissing the revision petition before him. We were asked to interfere finally under Section 5 of the Charter Act, but the power under that section can only be exercised in extraordinary cases and subject to the enactments of the Indian Legislature. I, therefore, dismiss the Letters Patent appeal with costs.

Moore, J.:— I agree. The question raised by this appeal is whether the District Munsif's order dismissing the suit on the ground that it had abated under O. 22, R. 4(3) of the CPC, by reason of the application which had been made under Sub-R. (1), O. 22, R. 4, of the Code to make the legal representative of the deceased defendant a party not having been re-presented within the time fixed by law, is a decree and appealable as such. In Subbayya v. Swaminadayyar, following Bhikaji Ramchandra v. Pursotham, it was held that an appeal lay against an order rejecting an application under S. 366 of the Code of 1882 to bring on record a person claiming to be the legal representative of a deceased-plaintiff and dismissing the suit on the ground that it had abated, and also against the dismissal of the suit. In Bhikaji Ramchandra v. Pushotam Sargent, C.J, and Birdwood, J., held that an order under Section 366 of the CPC, that a suit does abate, was virtually a decree within the meaning of S. 2 of Act 14 of 1882 as it disposed of the plaintiff's, claim as effectually as if the suit had been dismissed and appealable. In a, resent case, Subramania Iyer v. Venkataramier, my learned brother and Napier, J., ruled that an order declaring that a suit had abated owing to the cause of action not surviving was a decree as it determined that the right of the plaintiff ceased to exist on his death and therefore, came within the definition of decree in Section 2(2) of the CPC. I respectfully follow these decisions. It is true the words “the suit shall abate” in Sub-R. (2), O. 22, R. 3 of the CPC have been; substituted for the words “the Courts may make an order that the suit shall abate” which occurred in S. 366 of Act 14 of 1882. The latter words gave rise to a conflict of opinion as to whether an order that a suit shall abate was appealable, the Madras and Bombay High Courts holding that such an order was a decree, and, therefore, appealable, while the Allahabad High Court took a different view. It is probable, I think, that the alteration in the wording was made in order to give effect to the Madras and Bombay rulings and bring the language of the two rulings into conformity, under the present rule it is not necessary to make an order that the suit shall a bate. The suit abates ipso facto if no application is made under sub-R. 3, R. 4, O. 22 of the CPC, within the time fixed by law and must be dismissed. As pointed out by my learned brother although Rr. 3 and 4, O. 22 of the CPC, do not expressly state that the abatement of a suit has the same effect as the dismissal of a suit, this appears to have been the intention of the legislature. Upon a suit abating under R. 3 or R. 4, O. 22 of the CPC, a decree dismissing the suit must follow.

S.N/R.K

10. Appeal dismissed.