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Madras High Court
S. Eranhi Pakkran vs M.K. Pathumma And Ors. on 7 March, 1913
Equivalent citations: (1913) 25 MLJ 279


1. The suit in this case was instituted by the plaintiffs as the heirs of one Kunhamed, a Mahomedan for the ejectment of certain tenants from some land leased to them by Kunhamed. The second defendant denied plaintiff’s rights to succeed to Kunhamed’s property as his heir and contended that the succession to his properties was governed by the Marumakkatayam law, and that he himself was entitled to the property in question as the next Karnavan of the tarward of the deceased Kunhamed. The plaintiffs contended that the question of the rule of succession to the property was res judicata in consequence of an order passed in a prior suit relating to a different matter instituted by Kunhamed, when a question arose on Kunhamed’s death whether the present plaintiffs were entitled to continue the suit as his legal representatives. The 2nd defendant, who was a party defendant in that suit, contested the plaintiff’s heirship and right to come in as Kunhamed’s representative but the Court upheld their claim. The District Munsif held that the previous order would not make the question of plaintiff’s heirship res judicata and on the merits he decided the question against the plaintiffs. On appeal the District Judge arrived at a different conclusion on the question of res judicata and passed a decree in the plaintiff’s favour. The second defendant has preferred this second appeal. We are of opinion that the judge’s view on the question of res judicata is wrong. The question whether a person should be admitted as the legal representative of a deceased plaintiff to continue a suit cannot be regarded as one of the questions arising for decision in the suit itself. It is really a matter collateral ‘to the suit and one that has to be decided before the suit itself is proceeded with. The Civil Procedure Code does not provide for an appeal against an order deciding the question though the repealed Civil Procedure Code did. The view is in accordance with the opinion of the Bombay and Allahabad High Courts. See Balabai v. Ganesh (1902) I.L.R. 27 B. 162 and Purshotam Rao v. Janki (1905) I.L.R. 28 B. 109. We reverse the decrees of the Lower Appellate Court and remand the appeal for fresh disposal according to law on the merits. The costs of this second appeal will abide the result.

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