JUDGMENT
Sadasiva Aiyar, J. — This Letters Patent Appeal is against the order of Ayling, J., dismissing C. R. P. 877 of 1916 filed by the next reversioner (or one of the next set of reversioners) who was entitled to continue a suit O. S. No. 27 of 1914 (Temporary Sub-Court, Tanjore) brought by a person who was then the nearest reversioner for setting aside certain alienations effected by the 1st defendant (a Hindu widow). The original plaintiff died in April 1914 and on the 17th July 1914 (before the six months expired) the Subordinate Judge without hearing the petitioner-appellant or any other among the surviving body of reversioners passed an order declaring that the suit had abated. The petitioner was no doubt present in Court intending at first to present an application when the order was passed, but he thought it was useless to make such an application. The Subordinate Judge did not treat him as a person who was entitled to be heard on the question whether the suit had abated and his name did not appear on the record of the suit or in any proceedings connected with the suit, prior in date to the order of abatement. The Subordinate Judge's order was justified by the then current decisions of this Court but in the beginning of 1915 the Privy Council decided the case reported in Venkatanarayana Pillai v. Subbammal in which their Lordships held that a suit brought by the next reversioner is a suit really brought on behalf of the entire body of the reversioners and that if the reversioner who was conducting the suit died, the next man is entitled to come in for the purpose of continuing the conduct of the suit. Their Lordships express a doubt on the question whether the next reversioner who has the right to continue the suit comes within the definition of “legal representative “in Sect. 2, Sub-Sect. 11, Civil Procedure Code. But they base their decision on a broader ground, namely, that he was already a party to the suit though the conduct of it was in the hands of the 1st reversioner and that therefore he was entitled to continue the suit after the plaintiff's death. Abdur Rahim, j., held in a case reported in Sivagurunatha Chettiar v. Ramasami Aiyangar(2) that a person who brings a suit on behalf of himself and others having the same interest (after having got permission under O. 1, R. 8), brings what is known as a representative suit (which, I think, must be distinguished from a suit brought by a plaintiff in a representative capacity, i.e, as executor, administrator, guardian or trustee for some other person having the beneficial or legal interest) and the learned Judge seems to think that when such a plaintiff dies, any person who has the same interest and on whose behalf also the suit was brought, when he applies for liberty to continue the suit does not fall within the definition of legal representative, though he has got a right as a person on whose behalf also the suit was originally brought, to continue the suit on the death of the plaintiff who had till then the conduct of the suit. The learned Judge also holds that there is no limitation at all for an application by such a person to continue the suit. I am, however, inclined to hold that article 181 might apply to such a case, and that such an application must be made, if the suit had been treated by the Court as having abated within three years of the order so declaring. However, it is unnecessary to express a final opinion on that question because in the present case, the application was made within two years of the death of the original plaintiff himself.
It was, however, contended on the side of the respondents by Mr. Rajah Iyer that the petitioner's only remedy was by way of appeal against the Subordinate Judge's order treating the suit as having abated. It has no doubt been held in Suppu Nayakan…Plaintiff v. Perumal Chetty…Defendant . that an order of the Court declaring a suit as having abated not on the ground that six months had elapsed when the application was made by the legal representative but on the ground that the right to sue did not survive, is a decree and the only course open to the party aggrieved by such an order is to prefer an appeal against it. As regards the case in Suppu Nayakan v. Perumal Chetty the person who claimed to be the legal representative and who applied for leave to continue the suit as such was heard and the order of abatement was then passed overruling his contentions. As regards the case in Subramama Iyer v. Venkataramier. I am unable to find out from the papers available to me just now whether that case also was not one in which the legal representative was heard before the order was passed,
Mr. Venkatarama Aiyar for the appellant argued that if the Court passed such an order, the person interested (that is, the legal representative) not being given an opportunity to show cause against the passing of such an order, it is not binding on him and he need not have it set aside on appeal but could proceed by applying to continue the suit just as if no such order was in existence. I think that on the elementary principle of law that a party is not bound by any order passed behind his back and without his (or any person representing then his interest) having been given an opportunity to be heard against it, (unless of course there is any statutory provision, whether substantive or processual which makes it binding on him), such a person might treat it as a nullity, so far as he is concerned. Such an order need not be set aside on appeal. Even orders of the nature of what are called “orders of course “need not be set aside on appeal but can be vacated on application to the Court which passed the order, such Court being bound to pass a fresh order after hearing both sides. The appellant is therefore entitled to treat the order of abatement passed on the Court's own motion without hearing him as one not binding on him and apply in the ordinary course to vacate it and to continue, in the present case, his application which purported to be made under O. 22, R. 9, C. P. C., to set aside the abatement order as one passed under O. 22 and if a very strict technical view is taken by us in arriving at our decision in this case, the petition itself having been misconceived may be treated as having been properly dismissed by the Lower Courts and this Court was not bound to interfere under Sect. 115, C. P. C. I might also state that not only did the petitioner misquote the provision of law under which he was entitled to apply to continue the suit but he persisted in that mistake both in the appeal to the District Court and in the Revision Petition argued before Ayling, J. In the arguments advanced before us in this Letters Patent Appeal more time was spent in arguing that mistaken point than the point on which he is in my opinion, really entitled to succeed.
The question whether the application to the Subordinate Judge cannot be treated as a petition of review was also put forward and argued at great length before us and before Ayling, J. I might state that it the question is whether the discretion of the Lower Court in refusing to excuse the delay in applying under O. 22, R. 9, to set aside the order of abatement or the delay in applying for review (treating the petition as one for review) should be interfered with in revision, I would have little hesitation in holding that under Sect. 115 the discretion of the Lower Court in refusing to excuse the delay should not be interfered with by this Court. However their Lordships of the Privy Council indicate in Venkatanarayana Pillai v. Subbammal, that to save the widow and all the reversioners repeated harassments, it is advisable to have a declaratory suit permitted to be brought by the next reversioner (in order that evidence as to the character of the alienation made by the widow may not be lost by lapse of time), that such a suit should be decided, if possible, in one litigation and that the questions usually raised in such a suit should not be allowed to be fought out repeatedly in a multiplicity of suits. I would therefore allow this Letters Patent Appeal treating the provision of law under which this application was put in as amended in the proper manner and remand the case for disposal of the petition afresh in the light of the above observations. Having in view the mistaken view of the right procedure into which the appellant fell, and in which he persisted, I would direct that he should pay all the costs incurred by the respondents up to this date in all the Courts within two months from the date of the receipt of the records in the Subordinate Judge's Court (the same to be paid in any event to the respondent) and if he fails to do so, this appeal will stand dismissed.
Spencer, J.—I agree with the judgment just pronounced by my learned brother and the order proposed to be made. Only I am inclined to think that a suit by a reversioner is not only a representative suit but is also a suit by a plaintiff in a representative character as mentioned in O. 7, R. 4. It is true that the illustrations to the old Sect, 50 are illustrations of suits brought by executors, administrators, and guardians. But these illustrations are not repeated in the new Code, and as a rule illustrations are not necessarily exhaustive of the words of the section. In Gal Salvanl Bal Savaut v. Narayana Dhond Savant, certain redemption suits brought by members of an undivided Hindu family were treated as suits brought in a representative character within the meaning of this section. In Venkatanarayana Pillai v. Subbammal, the Judicial Committee of the Privy Council at p. 411 speak of a suit brought by a presumptive reversioner to declare “an adoption made by a widow to be invalid as being brought in a representatve capacity and on behalf of all reversioners.” But I feel no doubt that the Privy Council intended to give the widest scope to reversioners to agitate once for all and as early as possible all claims peculiar to the body of reversioners in one suit and that the decision in such a suit should be binding on all the reversioners. Acting in that spirit, I think that Courts should on the death of the nearest reversioner give every facility to the next reversioner to have the matter in dispute finally heard and determined. At the time when the appellant put in his Petitions Nos. 384 and 385 on August 2nd and No. 386 on August 16th, 1915, asking the Subordinate Judge to restore the suit by setting aside the order of dismissal and abatement and at the time when the Subordinate Judge passed his order thereon dated the 11th of October 1915, the prevailing law on the subject was that contained in the Privy Council decision of March 15, 1915; and following the law there laid down, the appellant should have been allowed to revive or rather to continue the suit which had been filed by the deceased plaintiff as representing the body of reversioners, and under O. 1, Rr. 1 and 8 (2), the Court that tried the suit had full power to bring the appellant on the record as a plaintiff in the place of the deceased plaintiff. I agree and have nothing to add on the questions of limitation and the maintainability of the revision petition.
K. V. S.Appeal allowed
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