BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED : 26/11/2007 CORAM: THE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR S.A.(MD)No.944 of 2007 1.The Divisional Excise Officer, Kovilpatti. 2.The State of Tamil Nadu, rep. through the District Collector, Thoothukudi District. ... Appellants Vs. 1.Mariammal 2.Sankareshwari 3.Maheshwari 4.Suresh 5.Alagusankar ... Respondents PRAYER Second Appeal filed under Section 100 of the Code of Civil Procedure, against the judgment and decree dated 07.12.2005 made in A.S.No.67 of 2005 on the file of the Sub Court, Kovilpatti, by which the judgment and decree dated 06.09.2005 made in O.S.No.95 of 2004 on the file of the District Munsif Court, Kovilpatti were reversed. !For Appellants ... Mr.D.Gandhiraj Government Advocate ^ :JUDGMENT
The defendants in the original suit are the appellants in the second
appeal. The respondents herein had filed O.S.No.95 of 2004 praying for a
declaration that the distraint notice dated 14.03.2004 issued by the Divisional
Excise Officer, Kovilpatti (the first appellant/first defendant) was null and
void and for a consequential permanent injunction against the
appellants/defendants from collecting the amounts due from Solaiappa Thevar from
the respondents/plaintiffs, on the basis of the judgment and decree of the High
Court, Chennai made in S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of
1989 and 848 of 1990. The suit was dismissed by the trial Court, namely the
Court of District Munsif, Kovilpatti by its judgment and decree dated
06.09.2005. On appeal, the same were reversed and a decree was granted as prayed
for in favour of the plaintiffs. Hence the present second appeal has been filed
by the appellants herein/defendants.
2. The facts leading to the filing of the second appeal can be
briefly stated as follows:
(i) The first respondent/first plaintiff is the wife of Late
Lakshmanan. The respondents 2 to 5/plaintiffs 2 to 5 are sons and daughters of
the said Lakshmanan. Lakshmanan was the son of Late Solaiappa Thevar. Solaiappa
Thevar emerged as the highest bidder in the auction conducted on 26.05.1981 for
running arrack shop Nos.1,2,3,7 and 22 at Kovilpatti. However he expressed his
inability and unwillingness to run the arrack shops. Therefore, all the said
arrack shops were re-auctioned on 20.07.1981. As the re-auction fetched only
lesser amounts for the said arrack shops, the above said Solaiappa Thevar was
held liable to pay the deficit amount of Rs.10,00,000/- as damages for breach of
contract as per the following calculation:
rhuha fil
vz;
Kjy; mry;
Vyk; U
kW Vyk;
U
tpj;jpahrk;
U
1
4,33,200
1,65,538
2,67,662
2
4,93,200
1,89,257
3,03,943
3
6,12,000
2,93,320
3,18,680
7
1,09,200
92,627
16,573
22
2,66,400
1,72,189
94,211
bkhj;jk;
10,01,069
As the said amount was sought to be recovered from Solaiappa Thevar,
he instituted five suits, viz., O.S.Nos.129 of 1984, 130 of 1984, 131 of 1984,
132 of 1984 and 134 of 1984 on the file of the Court of District Munsif,
Senkottai, praying for a declaration that the claims made by the Excise
Department to make good the deficit were null and void and for consequential
permanent injunctions restraining them from collecting the said amounts. As the
said suits were dismissed by the District Munsif, Senkottai, Solaiappa Thevar
filed appeals A.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160
of 1984 on the file of the Sub Court, Tenkasi which eventually came to be
allowed in favour of Solaiappa Thevar on 13.02.1989. As against the said
judgment and decrees of the Sub Court, Tenkasi, the appellants herein filed
S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990
on the file of the High Court of Judicature at Madras. All the said second
appeals were allowed on 02.11.2000. Thereafter, the said amount was sought to be
recovered from the respondents herein/plaintiffs by the impugned distraint
notice dated 14.03.2004.
(ii) According to the respondents/plaintiffs, Solaiappa Thevar died
on 16.12.1997, long before the judgment (common) in the second appeals was
pronounced. Contending that the judgment pronounced in the above said second
appeals was one against a dead person and hence invalid in law, the
respondents/plaintiffs had made a plea in their plaint that the
appellants/defendants could not recover the amount mentioned in the distraint
notice, as there were valid decrees passed by the Sub Court, Tenkasi in
A.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984. The
respondents/plaintiffs had made a further contention to the effect that the said
Solaiappa Thevar had left behind him a registered will dated 13.10.1997
bequeathing all his properties to one Azhaghumuthu who was his brother’s son;
that none of the properties of deceased Solaiappa Thevar was in the hands of the
respondents/plaintiffs and that hence, the appellants/defendants could not
recover any amount from the respondents/plaintiffs. Hence they had prayed for
the relief of declaration and consequential injunction as indicated above.
3. The appellants/defendants, in their written statement, did not
deny the plaint averment that Solaiappa Thevar died even before the judgment was
pronounced in S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and
848 of 1990. The plaint averment that Solaiappa Thevar had left a will
bequeathing all his properties in favour of his brother’s son Azhaghumuthu was
also not denied. It was specifically admitted in the written statement. On the
other hand, the appellants/defendants had contended before the trial Court that
it was the duty of the respondents herein/plaintiffs in the present suit to
inform the appellants herein/defendants (who were the appellants in the earlier
second appeals) of the death of Solaiappa Thevar so as to enable them to take
steps for bringing on record the legal representatives of Solaiappa Thevar; that
since the respondents/plaintiffs had failed to bring it to the notice of the
appellants and to the notice of the High Court before which the second appeals
were pending, they alone were responsible for their lapses and that hence, they
could not take advantage of their inaction and contend that the decrees were
legally invalid. They had contended further that the will made by Solaiappa
Thevar bequeathing all his properties in favour of his brother’s son was nothing
but a device made by him calculated at defrauding the Government of the amount
due to them; that whenever any amount was due from a deceased person, as per the
Revenue Recovery Act the Government would have the power to recover the same
from the legal heirs of the deceased and that hence, the suit filed by the
respondents herein/plaintiffs should be dismissed with cost.
4. The trial Court framed necessary issues and conducted trial. At
the conclusion of trial, after going through the evidence, the trial Court
dismissed the suit rejecting all the contentions raised by the plaintiffs. The
learned Subordinate Judge, Kovilpatti allowed the appeal A.S.No.67 of 2005
preferred against the said judgment and decree of the trial Court, set aside the
judgment and decree of the trial Court and decreed the suit as prayed for in
respect of both the reliefs. As against the said judgment and decree passed by
the learned Subordinate Judge, Kovilpatti in A.S.No.67 of 2005, the present
second appeal has been filed by the appellants herein/defendants.
5. This Court heard the submissions made by Mr.D.Gandhiraj, learned
Government Advocate on behalf of the appellants and perused the records
available in the form of typed-set of papers including the copies of the
judgments of the Courts below.
6. The second appeal has been preferred against the judgment and
decree of the lower appellate Court made in A.S.No.67 of 2005 on the file of the
Subordinate Judge, Kovilpatti, wherein and where under the judgment and decree
dated 06.09.2005 passed by the trial Court were reversed. The trial Court had
dismissed the suit. The lower appellate Court allowed the appeal, set aside the
decree of the trial Court and decreed the suit in its entirety.
7. The challenge made to the distraint notice impugned in the suit
was based on the contention of the plaintiffs that the claim of the
appellants/defendants made in the impugned distraint notice was barred by res
judicata. According to the respondents/plaintiffs, the claim made by the
appellants/defendants in a similar notice issued on an earlier occasion to
Solaiappa Thevar, while he was alive, for the recovery of the amount mentioned
therein as damages for the loss occasioned to the Government due to his failure
to get the licence for running the above said five arrack shops and pay the
licence fee after emerging as the successful bidder, had been challenged by the
said Solaiappa Thevar in Original Suit Nos.129 of 1984, 130 of 1984, 131 of
1984, 132 of 1984 and 134 of 1984 on the file of the District Munsif, Senkottai.
Though the said suits were initially dismissed by the trial Court, the appellate
Court allowed the appeals in favour of Solaiappa Thevar and decreed the said
suits as prayed for. A certified copy of the judgment in the said suits has been
produced and marked on the side of the respondents/plaintiffs as Ex.A.5. A
certified copy of the judgment of the first appellate Court dated 13.02.1989
pronounced in the appeals arising therefrom has been produced and marked as
Ex.A.6. It is quite obvious from the said certified copies of the judgments that
the said Solaiappa Thevar came out successful in the appeals A.S.Nos.155 of
1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984.
8. As against the judgment of the Subordinate Judge, Tenkasi,
pronounced in the above said appeals, the appellants herein preferred second
appeal Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of
1990 on the file of the High Court, Madras. Of course, all the second appeals
came to be allowed by a common judgment of the High Court of Judicature at
Madras, dated 02.11.2000. A certified copy of the said judgment has been
produced and marked as Ex.A.9. It is the clear case of the
respondents/plaintiffs that during the pendency of the second appeals and long
prior to the pronouncement of judgment in the second appeals, Solaiappa Thevar
died. The said contention of the respondents/plaintiffs has not been denied. The
appellants/defendants have clearly admitted the same in their written statement.
Moreover, the death certificate of Solaiappa Thevar and the death certificate of
his son Lakshmananan have been produced by the respondents/plaintiffs and marked
as Exs.A.3 and A.4. From Ex.A.3, it is quite clear that Solaiappa Thevar died on
16.12.1997. The said fact has also been admitted by the appellants/defendants.
Solaiappa Tehvar happened to be the sole respondent in the second appeal
Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990. As
such, it is quite obvious that on the date of pronouncement of judgment in the
second appeals, namely 02.11.2000, Solaiappa Thevar was not alive. According to
the respondents/plaintiffs, the second appeals had abated long before the
pronouncement of the judgment in the above said second appeals and hence, the
same is a nullity having no legal effect.
9. In Elisa and others vs. A.Doss reported in AIR 1992 Madras 159, a
learned Single Judge of Madras High Court (JUSTICE MR.SRINIVASAN, as he then
was), referring to some of the previous judgments of various Courts, held that
the decree in the said case having been passed against a dead person was a
nullity. Similarly, Thiru.JUSTICE P.THANGAVEL, Judge of the High Court, Madras
in “The Special Tahsildar (LA) BHEL Unit, Ranipet, N.A.District vs. Govindan and
others” reported in 1998(III) CTC 735 has held that the appeal preferred by the
Referring Officer against the Award passed by the Subordinate Judge in L.A.O.P.
stood abated on the failure of the appellant to take steps to bring the legal
representatives of the claimant on record, after the death of the sole claimant
during the pendency of the appeal before the High Court.
10. It is unnecessary to refer to various decisions holding that the
abatement of a suit or appeal on the failure of the plaintiff or the appellant
as the case may be, to take steps to bring on record the legal representatives
of the deceased appellant or deceased respondent was automatic and that no
formal order would be required as abatement of suit or appeal is the result of
operation of law. In the case on hand, it is quite obvious that nearly three
years prior to the pronouncement of judgment by the High Court in the second
appeals S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848
of 1990, the sole respondent therein had died. Therefore, there cannot be any
semblance of doubt that the appeals had abated before the pronouncement of
judgment in the said second appeals. According to Ex.A.3, Solaiappa Thevar died
on 16.12.1997. Steps should have been taken to implead the legal representatives
within 90 days thereafter. As it was not done, the appeals stood abated. After a
lapse of nearly 2 years and 8 months after abatement of the second appeals, the
judgment in the second appeals was pronounced. Hence the same was nothing but a
judgment pronounced against a dead person.
11. The effect of non-substitution of the legal heirs in the
original legal proceedings or the appellate proceedings on the respective
proceedings has been clarified by the Honourable Supreme Court in “Rangubai Kom
Sankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe and others” reported in AIR
1965 Supreme Court 1794. In the said case before the Apex Court, the preliminary
decree passed in the original suit had been challenged in the appeal filed
against the preliminary decree. During the pendency of the appeal, one of the
respondents in the appeal died and his legal representatives were not
substituted in the said appeal. But subsequently in the final decree
proceedings, they were substituted. In such circumstances, it was held that the
substitution at one stage of the suit enuring for the benefit of all subsequent
stages would not apply and the appeal was held abated. The relevant passages in
the said judgment are reproduced here under:
“(9) Let us now consider the question on principle. A combined reading of
Order XXII, Rr.3,4 and 11, of the Code of Civil Procedure shows that the
doctrine of abatement applies equally to a suit as well as to an appeal. In the
application of the said Rr.3 and 4 to an appeal, instead of “plaintiff” and
“defendant”, “appellant” and “respondent” have to be read in those rules. Prima
facie, therefore, if a respondent dies and his legal representatives are not
brought on record within the prescribed time, the appeal abates as against the
respondent under R.4, read with R.11, of O.XXII of the Code of Civil Procedure.
But there is another principle recognized by the Judicial Committee in the
aforesaid decision which softens the rigour of this rule. The said principle is
that if the legal representatives are brought on record within the prescribed
time at one stage of the suit, it will enure for the benefit of all the
subsequent stages of the suit. The application of this principle to different
situations will help to answer the problem presented in the present case. (1) A
filed a suit against B for the recovery of possession and mesne profits. After
the issues were framed, B died. At the stage of an interlocutory application for
production of documents, the legal representatives of B were brought on record
within the time prescribed. The order bringing them on record would enure for
the benefit of the entire suit. (2) The suit was decreed and an appeal was filed
in the High Court and was pending therein. The defendant died and his legal
representatives were brought on record. The suit was subsequently remanded to
the trial Court. The order bringing the legal representatives on record in the
appeal would enure for the further stages of the suit. (3) An appeal was filed
against an interlocutory order made in a suit. Pending the appeal the defendant
died and his legal representatives were brought on record. The appeal was
dismissed. The appeal being a continuation or a stage of the suit, the order
bringing the legal representatives on record would enure for the subsequent
stages of the suit. This would be so whether in the appeal the trial Court’s
order was confirmed, modified or reversed. In the above 3 illustrations one fact
is common, namely, the order bringing on record the legal representatives was
made at one stage of the suit, be it in the suit or in an appeal against the
interlocutory order or final order made in the suit, for an appeal is only a
continuation of the suit. Whether the appellate order confirms that of the first
Court, modifies or reverses it, it replaces or substitutes the order appealed
against. It takes its place in the suit and becomes a part of it. It is as it
were the suit was brought to the appellate Court at one stage and the orders
made therein were made in the suit itself. Therefore, that order enures for the
subsequent stages of the suit.
(10) But the same legal position cannot be invoked in the reverse or
converse situation. A suit is not a continuation of an appeal. An order made in
a suit subsequent to the filing of an appeal at an earlier stage will move
forward with the subsequent stages of the suit or appeals taken therefrom; but
it cannot be projected backwards into the appeal that has already been filed. It
cannot possibly become an order in the appeal. Therefore, the order bringing the
legal representatives of the 7th respondent on record in the final decree
proceedings cannot enure for the benefit of the appeal filed against the
preliminary decree. We, therefore, hold that the appeal abated so far as the 7th
respondent was concerned.”
12. In the instant case, it is not the contention of the
appellants/defendants that the legal heirs of the sole respondent in
S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990,
who died on 16.12.1997, were brought on record. Admittedly, the
appellants/defendants did not take any steps for about three years from the date
of death of Solaiappa Thevar to substitute his legal heirs in the above said
second appeals. On the other hand the judgment was pronounced by the High Court
in those second appeals in ignorance of the death of Solaiappa Thevar. In fact,
it is not the case of the appellants/defendants that the said appeals had not
abated on the expiry of the period allowed by statute for substitution of legal
representatives of the deceased sole respondent therein (Solaiappa Thevar). On
the contrarty, it was contended on behalf of the appellants/defendants that a
duty was cast upon the counsel for the party who died pending the proceedings,
to inform his death and the particulars of his legal heirs and that since it was
not done, the legal heirs of Solaiappa Thevar who are the present
respondents/plaintiffs could not be allowed to contend that the judgment
pronounced in those second appeals and decrees passed thereon were invalid in
law and would not be binding upon them. In this regard, it would be convenient
to refer to the relevant provisions contained in Rule 4 of Order 22 of the Code
of Civil Procedure which runs as follows:
“Procedure in case of death of one of several defendants or of sole
defendant:-
(1) Where one of two or more defendants dies and the right to sue does not
survive against the surviving defendant or defendants alone, or a sole defendant
or sole surviving defendant dies and the right to sue survives, the Court on an
application made in that behalf, shall cause the legal representative of the
deceased defendant to be made a party and shall proceed with the suit.
(2) Any person so made a party may make any defence appropriate to his
character as legal representative of the deceased defendant.
(3) Where within the time limited by law no application is made under sub-
rule (1), the suit shall abate as against the deceased defendant.
[(4) The Court whenever it thinks fit, may exempt the plaintiff from the
necessity of substituting the legal representatives of any such defendant who
has failed to file a written statement or who, having filed it, has failed to
appear and contest the suit at the hearing; and judgment may, in such case, be
pronounced against the said defendant notwithstanding the death of such
defendant and shall have the same force and effect as if it has been pronounced
before death took place.
(5) Where –
(a) the plaintiff was ignorant of the death of a defendant, and could not,
for that reason, make an application for the substitution of the legal
representative of the defendant under this rule within the period specified in
the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated,
and
(b) the plaintiff applies after the expiry of the period specified
therefor in the Limitation Act, 1963 (36 of 1963), for setting aside the
abatement and also for the admission of that application under Section 5 of that
Act on the ground that he had, by reason of such ignorance, sufficient cause for
not making the application within the period specified in the said Act, the
Court shall, in considering the application under the said Section 5, have due
regard to the fact of such ignorance, if proved.]
HIGH COURT AMENDMENT (MADRAS): (i) At the end sub-rule (3), add the words
“except as hereinafter provided”.
(ii) Insert the following as sub-rule (4):
“(4) The Court whenever it sees fit, may exempt the plaintiff from the
necessity to substitute the legal representative of any such defendant who has
been declared ex parte or who has failed to file his written statement or who
having filed it, has failed to appear and contest at the hearing; and the
judgment may in such case be pronounced against the said defendant
notwithstanding the death of such defendant, and shall have the same force and
effect as if it has been pronounced before death took place.”
In the new sub-rule (4) inserted by the Amendment Act, 1976 the amendment
made by the Madras High Court has been incorporated.
13. Sub Rule (3) makes it clear that in case no application is made
under Sub Rule (1), the suit shall abate as against the deceased defendant. Of
course Sub Rule (4) gives power to the Court to exempt the plaintiff from the
necessity to substitute the legal representatives of any such defendant who has
been declared exparte or who has failed to file his written statement or who,
having filed it, has failed to appear and contest at the hearing. A combined
reading of Sub Rules (1), (3) and (4) will make it obvious that the plaintiff or
the appellant shall be the person who is bound to take out necessary application
for bringing the legal representatives of the deceased defendant or respondent,
as the case may be, on record, within the time prescribed by law. As per Rule
(5), if the plaintiff/appellant was ignorant of the death of a
defendant/respondent and could not, for that reason, make an application for the
substitution of legal representatives of the defendant/respondent within the
period specified in the Limitation Act and in consequence of the same the
suit/appeal abated, then such plaintiff or appellant could file an application
for setting aside the abatement after the expiry of the period specified in the
Limitation Act for bringing on record the legal representatives of the deceased
defendant/respondent, here again within the time limit prescribed by the
statute. Even in case of failure to apply for setting aside the abatement within
time, such an application could be filed along with an application under Section
5 of the Limitation Act to condone the delay on the ground that he had, by
reason of ignorance of the death of the defendant/respondent, had sufficient
cause for not making the application within the period specified in the
Limitation Act.
14. A combined reading of all those clauses will make it very clear
that even the ignorance of the plaintiff or the appellant will not save the
appeal from abatement, if steps are not taken within the period of limitation
for substituting the legal representatives of the deceased defendant/respondent,
as the case may be. Therefore, this Court entertains no doubt regarding the fact
that S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of
1990 stood abated long before the judgment was pronounced in the said second
appeals. It is not the case of either party that exemption was granted from
substituting the legal heirs of Solaiappa Thevar in those second appeals under
Sub Clause (4) of Rule (4), Order XXII of the Code of Civil Procedure. Such an
exemption also could not have been granted, in the light of the admitted fact
that Solaiappa Thevar did not either remain exparte or fail to contest the
appeal after entering appearance.
15. The appellants/defendants in the instant case who plead
ignorance of the death of Solaiappa Thevar during the pendency of the previous
second appeals, could have very well applied, soon after they came to know that
Solaiappa Thevar died long before pronouncement of judgment in the said second
appeals causing abatement of the same, for setting aside abatement caused by the
death of Solaiappa Thevar along with an application for condoning the delay in
filing the application to set aside abatement and a further application for
substitution of the legal representatives of Solaiappa Thevar as respondents in
those second appeals so that the legal representatives of Solaiappa Thevar would
have got a chance to contest the appeals and urge the High Court in those second
appeals to uphold the judgment and decrees of the first appellate Court therein.
It is quite clear from the fact that the impugned distraint notice was issued to
the respondents herein/plaintiffs in the suit that the appellants/defendants
were very much aware of the fact that Solaiappa Thevar died before the issuance
of the said distraint notice. Assuming that the appellants/defendants might have
got the knowledge that Solaiappa Thevar was no more only subsequent to the
pronouncement of judgment by the High Court in the previous second appeals and
that they had no idea as to whether the death occurred during the pendency of
the former second appeals or not and hence, they tried to proceed against the
respondents herein/plaintiffs under the Revenue Recovery Act as the legal
representatives of Solaippa Thevar, it cannot be disputed that the factum of
death of Solaiappa Thevar during the pendency of the former second appeals was
brought to the notice of the appellants/defendants when the summons in the
present suit was served on them. At least thereafter they could have taken steps
for the revival of the said second appeals by filing petitions to set aside the
abatement, to condone the delay in filing the petition for setting aside
abatement and to substitute the legal representatives of Solaiappa Thevar.
Instead of doing so, the appellants/defendants simply contested the present suit
contending that the inaction on the part of the respondents/plaintiffs to
intimate the death of Solaiappa Thevar and take steps to get themselves
impleaded in the former second appeals would disentitle them from contending
that the former second appeals had abated and the judgment in those second
appeals was pronounced after their abatement. This Court is not in a position to
accept the said contention of the appellants/defendants. It seems the said
contention has been raised in ignorance of the effect of abatement. The effect
of abatement is that the suit or appeal in respect of the deceased party shall
be considered no more pending.
16. When an occasion arose before the Supreme Court to consider the
effect of a judgment in a second appeal pronounced after the second appeal had
abated, it was held the second appeal should be taken to have abated by
operation of law; that there could not be any merger of the judgment in the
second appeal with the decree passed by the first appellate Court and that the
decree passed by the first appellate Court must be deemed to have become final.
It was held so in “Amba Bai v. Gopal” reported in AIR 2001 Supreme Court 2003.
The following was the observation made therein:
“……As the judgment in the Second Appeal was passed without the
knowledge that the appellant had died, the same being a judgment passed against
the dead person is a nullity. When the second appellant Radhu Lal died on
14.12.1990, his legal representatives could have taken steps to get themselves
impleaded in the Second Appeal proceedings and as it was not done, the Second
Appeal should be taken to have abated by operation of law.”…..
In “Rajendra Prasad v. Khirodhar Mahto”, reported in 1994 Supp(3)
SCC 314, it was held that the preliminary decree became final when an appeal
filed against a preliminary decree in a partition suit was allowed to abate.
In “Bibi Rahmani Khatoon v. Harkoo Gope“, reported in AIR 1981 SC
1450, it was observed as follows:
“If a party to an appeal or revision dies and either the appeal or
revision abates, it will have an impact on the judgment, decree or order against
which the appeal or revision is preferred. In fact such judgment, decree or
order under appeal or revision would become final.”
17. Of course in some cases, it has been observed that a judgment
pronounced against a dead person would not be necessarily a nullity. But such
observation is applicable to cases where the judgment was pronounced after the
death of the party and before the expiry of the period of limitation for
substituting his legal representatives. In other words if the judgment is
pronounced before the suit or appeal abates, then the judgment shall not be a
nullity. In such cases the legal representatives of the deceased party should
come forward to get the judgment set aside and the appeal or suit reheard. But
the position will be different when the suit or appeal is allowed to get abated.
A judgment pronounced after the abatement would be a judgment pronounced in a
non-existent case and hence, a nullity.
18. In this case, the respondents/plaintiffs have clearly
established that the judgment of the High Court in the former second appeals was
pronounced nearly three years after the death of Solaiappa Thevar, the
respondent therein and hence, the same was a nullity. The necessary corollary is
that the judgment of the lower appellate Court in the appeals concerned in those
second appeals stood unaffected. As per the judgment of the lower appellate
Court concerned in those second appeals, the distraint notice issued to
Solaiappa Thevar for the recovery of damages for the loss occasioned to the
appellants/defendants stood declared null and void and the appellants/defendants
had been injuncted from proceeding with the recovery of the said sum based on
the said notice. The present distraint notice impugned in the instant case is
nothing but an attempt to enforce the said claim of the appellants/defendants
against Solaiappa Thevar. Therefore, this Court finds no defect or infirmity in
the finding of the lower appellate Court that the impugned distraint notice
issued by the appellants to the respondents was null and void and legally
ineffective. On that score alone, the appellants in the second appeal are bound
to fail.
19. It is the further argument advanced by the learned Government
Advocate that after the issue of a distraint notice and during the pendency of
the suits filed by Solaiappa Thevar, a partition was effected and that even the
properties which he got to his share in the said partition were bequeathed in
favour of his brother’s son by a Will dated 13.10.1997 with a mala fide
intention of keeping the properties beyond the reach of the respondents. This
Court is of the view that it is unnecessary to go into the question whether the
bequeath made by Solaiappa Thevar in favour of his brother’s son was made with
mala fide intention, since the very liability of Solaiappa Thevar himself to pay
damages for breach of contract is the issue involved in this case. As it was
pointed out supra, there are decrees in favour of Solaiappa Thevar declaring the
distraint notices issued against him null and void and restraining the
appellants herein/defendants from recovering the amounts mentioned therein as
damages for breach of contract. As such, there won’t be any question of
recovering the same from the properties of Solaiappa Thevar. Therefore, the said
contention of the learned Government Advocate also deserves to be rejected.
20. Damages for breach of contract had been sought to be recovered
from Solaiappa Thevar under the Revenue Recovery Act by virtue of Section 52 of
the Tamil Nadu Revenue Recovery Act, 1864. Therefore, Section 58 shall not be
applicable. As damages were sought to be recovered for a breach of contract, the
very basis on which the same was claimed and the quantum of damages could be
canvassed in a civil Court unless the jurisdiction of the civil Court is ousted
either expressly or by necessary implication. It has not been contended that the
civil Court’s jurisdiction was ousted in respect of the breach of contract
committed by Solaiappa Thevar either by a statute applicable to the contract or
by a provision incorporated in the terms and conditions of the contract. Even
otherwise the question of jurisdiction was germane to the former legal
proceedings in which the judgment and decrees in question were passed. The first
appellate Court in the former cases decided the cases in favour of Solaiappa
Thevar holding that the trial Court did have the jurisdiction to entertain the
suit. As such, the question of jurisdiction of the Court to entertain the former
suits cannot be raised in the present suit. The present suit has been filed on
the basis that there are binding decrees of declaration and injunction against
the appellants/defendants from recovering the damages allegedly due from
Solaiappa Thevar. Therefore, the said contention of the learned Government
Advocate, representing the appellants, also has got to be discountenanced.
21. The lower appellate Court has scrupulously considered all the
aspects and has held that the appellants/defendants could not recover any amount
from the respondents/plaintiffs as damages for the breach of contract allegedly
committed by Solaiappa Thevar; that the judgments and decrees passed in
A.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984 which
have become final due to the abatement of the second appeals preferred there
from, are binding on the appellants herein/defendants in the instant case and
that hence, the respondents/plaintiffs are entitled to the reliefs of
declaration as well as injunction as prayed for by them. Valid and cogent
reasons have also been assigned by the learned lower appellate Judge. This Court
is not able to find any infirmity or defect in the judgment and decree of the
lower appellate Court. The lower appellate Court being the final Court of appeal
on facts, its finding on facts cannot be interfered with in the second appeal
unless the same amounts to a perverse finding. Questions of law rightly decided
by the lower appellate Court will not amount to substantial questions of law. In
this case the appellants have failed to show that any question of law has been
wrongly decided by the lower appellate Court. Hence this Court is not convinced
that any substantial question of law has arisen for decision of this Court in
this second appeal.
22. For all the reasons stated above, this Court comes to the
conclusion that there is no merit in the second appeal and the same deserves to
be dismissed at the stage of admission itself.
23. In the result, this Second Appeal is dismissed. There shall be
no order as to payment of costs, as the second appeal is dismissed at the stage
of admission itself.
SML
To
1.The District Munsif Court,
Kovilpatti
2.The Sub Court,
Kovilpatti.