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(Raja Srimathu) Muthuvijaya … vs N.A. Swaminathan Chettiar And … on 9 October, 1931

Madras High Court
(Raja Srimathu) Muthuvijaya … vs N.A. Swaminathan Chettiar And … on 9 October, 1931
Equivalent citations: AIR 1932 Mad 212
Author: Jackson


JUDGMENT

Jackson, J.

1. The short point in this second appeal is whether when the suit abates against one of several joint decree-holders it abates against all. The District Munsif decreed
that plaintiff and defendants 6 to 31 be put in possession of the Rajali Kaduvetti fields.

2. The appeal abated against defendant 25, The appellant, defendant 1, wants it declared that the decree-holders have no right to the fields, or to disturb his occupation. Now defendant 25 under the decree gets the right and can oust defendant 1. Is it worthwhile considering whether the remaining defendants have or have not the right? The line of argument is that if these remaining defendants had brought a bona fide representative suit they could have litigated the right of defendant 25, and this appeal can go on in his absence on the same line of reasoning. This illustrates the danger of carrying principles applicable to one set of circumstances into another. In Sonachalam Pillai v. Kumaravelu Chettiar A.I.R.1928 Mad. 77 it has been ruled that where persons litigate bona fide in respect of a common right the suit will operate as res judicata, against others enjoying this common right, even though they have received no notice Under Order 1, Rule 8 of the suit.

3. But here we have a person who has been a party to the suit and has obtained a decree, and it is impossible by analogy to say that his right can be litigated in his absence by other persons on appeal. The correct view, with all respect, is clearly laid down in Srinivasalu Chetti v. Guraviah A.I.R. 1927 Mad. 505. The appeal must be dismissed: of. Maula Bux v. Chanan Mal A.I.R. 1926 Lah. 332. Nor can it be argued that the absence of defendant 25 is immaterial because the interest of the defendants are separable as in Sant Singh v. Golab Singh A.I.R. 1928 Lah. 572. In the decree defendant 25 is not given a separate interest apart from that of the other defendants, and his right cannot be cut up in his absence. The appeal fails and is dismissed with costs.

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