Manikka S. Balaramie... v. Vasudevan And Others...

Wallace, J. — We are concerned with two petitions C. M. Ps. Nos. 763 and 764 of 1928, both arising out of the hearing by this Court of C. R. P. No. 801 of 1928. That petition was beard by Mr. Justice Devadoss and judgment was pronounced on 6th December, 1927. It has subsequently come to light that the respondent in the Civil Revision Petition died on 36th November, 1927, a few days before the judgment was pronounced. The formal order of this Court on the Civil Revision Petition shows respondent's name. The petitioner before us on 2nd February 1928, within 3 months of the death of the respondent, has put in the present two petitions, No. 764 to bring on the legal representatives of the deceased in the Civil Revision Petition No. 763 to have the Civil Revision Petition re-heard. He contends, however, that the latter petition is unnecessary and that he is entitled to have the legal representatives brought on and the judgment of Mr. Justice Devadoss, to stand against them. His main contention is that when a party to a legal action has died and the legal representatives have been brought on in time, so that the action does not abate, the bringing on of the legal representatives validates all proceedings in the action up to date of their being brought on, which have taken place since the death of the party. This involves the proposition that proceedings to which the legal representatives are not a party and to which no representative of theirs was a party will nevertheless bind them. It is argued that that is not improper or illegal, because the case of the respondent in the Civil Revision Petition, though he was dead, was fully argued by his learned Advocate, and therefore the case of the legal representatives has not suffered. But that is to bind the legal representatives by the case of the respondent and it cannot be argued that that cannot in law ever prejudice them.

The point is practically res Integra but I consider that the true view must be the legal action, on the death of a party to it passes into a state of suspense, which itself, if the legal representative is not brought on record within time, passes into a state of abatement, and that while the action is in a state of suspense, no valid act, which is not purely formal or processual but involves a decision on the merits of any part of the action, can be done by the Court. A simple but not exhaustive teat would be: would the order by which it is sought to bind the legal representative be of the nature of a res judicata? I do not think the case rulings cited before us are of much assistance. So far as the intention of the legislature may be gathered, R. 6, of O. 22, is an indication that it did not intend to apply the principle contended for by petitioner beyond the restricted operation of that rule. It is easy to foresee that the adoption or the rejection of petitioner's principle will alike give rise to difficulties. These will have to be dealt with as they arise. In the present case I consider that the proper order to pass is to hold that the Civil Revision Petition has been in suspense since the date of respondent's death, to bring on the legal re presentatives in it now and to have the Civil Revision Petition re-heard, since the order pronounced in it by Mr. Justice Devadoss has now no validity in law. I would grant both petitions, and post the Civil Revision Petition for fresh hearing, and direct each party to bear his own costs in these petitions.

Pakenham Walsh, J.—I agree.

N.R.R