{"id":116362,"date":"2007-11-26T00:00:00","date_gmt":"2007-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/the-divisional-excise-officer-vs-mariammal-on-26-november-2007"},"modified":"2015-08-29T10:54:21","modified_gmt":"2015-08-29T05:24:21","slug":"the-divisional-excise-officer-vs-mariammal-on-26-november-2007","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/the-divisional-excise-officer-vs-mariammal-on-26-november-2007","title":{"rendered":"The Divisional Excise Officer vs Mariammal on 26 November, 2007"},"content":{"rendered":"
Madras High Court<\/div>\n
The Divisional Excise Officer vs Mariammal on 26 November, 2007<\/div>\n
       \n\n  \n\n  \n\n \n \n BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT\n\n\nDATED : 26\/11\/2007\n\n\nCORAM:\nTHE HONOURABLE MR.JUSTICE P.R.SHIVAKUMAR\n\n\nS.A.(MD)No.944 of 2007\n\n\n1.The Divisional Excise Officer,\n  Kovilpatti.\n\n2.The State of Tamil Nadu,\n  rep. through the District Collector,\n  Thoothukudi District.\t\t\n\t\t\t\t...\t\tAppellants\n\nVs.\n\n\n1.Mariammal\n2.Sankareshwari\n3.Maheshwari\n4.Suresh\n5.Alagusankar\t\t\t...\t\tRespondents\n\n\nPRAYER\n\n\nSecond Appeal filed under Section 100 of the Code of Civil Procedure,\nagainst the judgment and decree dated 07.12.2005 made in A.S.No.67 of 2005 on\nthe file of the Sub Court, Kovilpatti, by which the judgment and decree dated\n06.09.2005 made in O.S.No.95 of 2004 on the file of the District Munsif Court,\nKovilpatti were reversed.\n\n\n!For Appellants\t\t...\tMr.D.Gandhiraj\n\t\t\t\tGovernment Advocate\t\n\n^\t\t\t\t \t\n\n\n:JUDGMENT\n<\/pre>\n
\t\tThe defendants in the original suit are the appellants in the second
\nappeal. The respondents herein had filed O.S.No.95 of 2004 praying for a
\ndeclaration that the distraint notice dated 14.03.2004 issued by the Divisional
\nExcise Officer, Kovilpatti (the first appellant\/first defendant) was null and
\nvoid and for a consequential permanent injunction against the
\nappellants\/defendants from collecting the amounts due from Solaiappa Thevar from
\nthe respondents\/plaintiffs, on the basis of the judgment and decree of the High
\nCourt, Chennai made in S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of
\n1989 and 848 of 1990. The suit was dismissed by the trial Court, namely the
\nCourt of District Munsif, Kovilpatti by its judgment and decree dated
\n06.09.2005. On appeal, the same were reversed and a decree was granted as prayed
\nfor in favour of the plaintiffs. Hence the present second appeal has been filed
\nby the appellants herein\/defendants.\n<\/p>\n
\t\t2. The facts leading to the filing of the second appeal can be
\nbriefly stated as follows:\n<\/p>\n
\t\t(i) The first respondent\/first plaintiff is the wife of Late
\nLakshmanan. The respondents 2 to 5\/plaintiffs 2 to 5 are sons and daughters of
\nthe said Lakshmanan. Lakshmanan was the son of Late Solaiappa Thevar. Solaiappa
\nThevar emerged as the highest bidder in the auction conducted on 26.05.1981 for
\nrunning arrack shop Nos.1,2,3,7 and 22 at Kovilpatti. However he expressed his
\ninability and unwillingness to run the arrack shops. Therefore, all the said
\narrack shops were re-auctioned on 20.07.1981. As the re-auction fetched only
\nlesser amounts for the said arrack shops, the above said Solaiappa Thevar was
\nheld liable to pay the deficit amount of Rs.10,00,000\/- as damages for breach of
\ncontract as per the following calculation:\n<\/p>\n
rhuha fil
\nvz;\n<\/p>\n
Kjy; mry;\n<\/p>\n
Vyk; U
\nkW Vyk;\n<\/p>\n
U
\ntpj;jpahrk;\n<\/p>\n
U
\n1<\/span>
\n4,33,200
\n1,65,538
\n2,67,662
\n2<\/span>
\n4,93,200
\n1,89,257
\n3,03,943
\n3<\/span>
\n6,12,000
\n2,93,320
\n3,18,680
\n7<\/span>
\n1,09,200
\n92,627
\n16,573
\n22<\/span>
\n2,66,400
\n1,72,189
\n94,211<\/p>\n
 bkhj;jk;\n<\/p>\n
10,01,069<\/p>\n
\t\tAs the said amount was sought to be recovered from Solaiappa Thevar,
\nhe instituted five suits, viz., O.S.Nos.129 of 1984, 130 of 1984, 131 of 1984,
\n132 of 1984 and 134 of 1984 on the file of the Court of District Munsif,
\nSenkottai, praying for a declaration that the claims made by the Excise
\nDepartment to make good the deficit were null and void and for consequential
\npermanent injunctions restraining them from collecting the said amounts. As the
\nsaid suits were dismissed by the District Munsif, Senkottai, Solaiappa Thevar
\nfiled appeals A.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160
\nof 1984 on the file of the Sub Court, Tenkasi which eventually came to be
\nallowed in favour of Solaiappa Thevar on 13.02.1989. As against the said
\njudgment and decrees of the Sub Court, Tenkasi, the appellants herein filed
\nS.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990
\non the file of the High Court of Judicature at Madras. All the said second
\nappeals were allowed on 02.11.2000. Thereafter, the said amount was sought to be
\nrecovered from the respondents herein\/plaintiffs by the impugned distraint
\nnotice dated 14.03.2004.\n<\/p>\n
\t\t(ii) According to the respondents\/plaintiffs,  Solaiappa Thevar died
\non 16.12.1997, long before the judgment (common) in the second appeals was
\npronounced. Contending that the judgment pronounced in the above said second
\nappeals was one against a dead person and hence invalid in law, the
\nrespondents\/plaintiffs had made a plea in their plaint that the
\nappellants\/defendants could not recover the amount mentioned in the distraint
\nnotice, as there were valid decrees passed by the Sub Court, Tenkasi in
\nA.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984. The
\nrespondents\/plaintiffs had made a further contention to the effect that the said
\nSolaiappa Thevar had left behind him a registered will dated 13.10.1997
\nbequeathing all his properties to one Azhaghumuthu who was his brother’s son;
\nthat none of the properties of deceased Solaiappa Thevar was in the hands of the
\nrespondents\/plaintiffs and that hence, the appellants\/defendants could not
\nrecover any amount from the respondents\/plaintiffs. Hence they had prayed for
\nthe relief of declaration and consequential injunction as indicated above.\n<\/p>\n
\t\t3. The appellants\/defendants, in their written statement, did not
\ndeny the plaint averment that Solaiappa Thevar died even before the judgment was
\npronounced in S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and
\n848 of 1990. The plaint averment that Solaiappa Thevar had left a will
\nbequeathing all his properties in favour of his brother’s son Azhaghumuthu was
\nalso not denied. It was specifically admitted in the written statement. On the
\nother hand, the appellants\/defendants had contended before the trial Court that
\nit was the duty of the respondents herein\/plaintiffs in the present suit to
\ninform the appellants herein\/defendants (who were the appellants in the earlier
\nsecond appeals) of the death of Solaiappa Thevar so as to enable them to take
\nsteps for bringing on record the legal representatives of Solaiappa Thevar; that
\nsince the respondents\/plaintiffs had failed to bring it to the notice of the
\nappellants and to the notice of the High Court before which the second appeals
\nwere pending, they alone were responsible for their lapses and that hence, they
\ncould not take advantage of their inaction and contend that the decrees were
\nlegally invalid. They had contended further that the will made by Solaiappa
\nThevar bequeathing all his properties in favour of his brother’s son was nothing
\nbut a device made by him calculated at defrauding the Government of the amount
\ndue to them; that whenever any amount was due from a deceased person, as per the
\nRevenue Recovery Act the Government would have the power to recover the same
\nfrom the legal heirs of the deceased and that hence, the suit filed by the
\nrespondents herein\/plaintiffs should be dismissed with cost.\n<\/p>\n
\t\t4. The trial Court framed necessary issues and conducted trial. At
\nthe conclusion of trial, after going through the evidence, the trial Court
\ndismissed the suit rejecting all the contentions raised by the plaintiffs.   The
\nlearned Subordinate Judge, Kovilpatti allowed the appeal A.S.No.67 of 2005
\npreferred against the said judgment and decree of the trial Court, set aside the
\njudgment and decree of the trial Court and decreed the suit as prayed for in
\nrespect of both the reliefs. As against the said judgment and decree passed by
\nthe learned Subordinate Judge, Kovilpatti in A.S.No.67 of 2005, the present
\nsecond appeal has been filed by the appellants herein\/defendants.\n<\/p>\n
\t\t5. This Court heard the submissions made by Mr.D.Gandhiraj, learned
\nGovernment Advocate on behalf of the appellants and perused the records
\navailable in the form of typed-set of papers including the copies of the
\njudgments of the Courts below.\n<\/p>\n
\t\t6. The second appeal has been preferred against the judgment and
\ndecree of the lower appellate Court made in A.S.No.67 of 2005 on the file of the
\nSubordinate Judge, Kovilpatti, wherein and where under the judgment and decree
\ndated 06.09.2005 passed by the trial Court were reversed. The trial Court had
\ndismissed the suit. The lower appellate Court allowed the appeal, set aside the
\ndecree of the trial Court and decreed the suit in its entirety.\n<\/p>\n
\t\t7. The challenge made to the distraint notice impugned in the suit
\nwas based on the contention of the plaintiffs that the claim of the
\nappellants\/defendants made in the impugned distraint notice was barred by res
\njudicata. According to the respondents\/plaintiffs, the claim made by the
\nappellants\/defendants in a similar notice issued on an earlier occasion to
\nSolaiappa Thevar, while he was alive, for the recovery of the amount mentioned
\ntherein as damages for the loss occasioned to the Government due to his failure
\nto get the licence for running the above said five arrack shops and pay the
\nlicence fee after emerging as the successful bidder, had been challenged by the
\nsaid Solaiappa Thevar in Original Suit Nos.129 of 1984, 130 of 1984, 131 of
\n1984, 132 of 1984 and 134 of 1984 on the file of the District Munsif, Senkottai.
\nThough the said suits were initially dismissed by the trial Court, the appellate
\nCourt allowed the appeals in favour of Solaiappa Thevar and decreed the said
\nsuits as prayed for. A certified copy of the judgment in the said suits has been
\nproduced and marked on the side of the respondents\/plaintiffs as Ex.A.5. A
\ncertified copy of the judgment of the first appellate Court dated 13.02.1989
\npronounced in the appeals arising therefrom has been produced and marked as
\nEx.A.6. It is quite obvious from the said certified copies of the judgments that
\nthe said Solaiappa Thevar came out successful in the appeals A.S.Nos.155 of
\n1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984.\n<\/p>\n
\t\t8. As against the judgment of the Subordinate Judge, Tenkasi,
\npronounced in the above said appeals, the appellants herein preferred second
\nappeal Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of
\n1990 on the file of the High Court, Madras. Of course, all the second appeals
\ncame to be allowed by a common judgment of the High Court of Judicature at
\nMadras, dated 02.11.2000. A certified copy of the said judgment has been
\nproduced and marked as Ex.A.9. It is the clear case of the
\nrespondents\/plaintiffs that during the pendency of the second appeals and long
\nprior to the pronouncement of judgment in the second appeals, Solaiappa Thevar
\ndied. The said contention of the respondents\/plaintiffs has not been denied. The
\nappellants\/defendants have clearly admitted the same in their written statement.
\nMoreover, the death certificate of Solaiappa Thevar and the death certificate of
\nhis son Lakshmananan have been produced by the respondents\/plaintiffs and marked
\nas Exs.A.3 and A.4. From Ex.A.3, it is quite clear that Solaiappa Thevar died on
\n16.12.1997. The said fact has also been admitted by the appellants\/defendants.
\nSolaiappa Tehvar happened to be the sole respondent in the second appeal
\nNos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990. As
\nsuch, it is quite obvious that on the date of pronouncement of judgment in the
\nsecond appeals, namely 02.11.2000, Solaiappa Thevar was not alive. According to
\nthe respondents\/plaintiffs, the second appeals had abated long before the
\npronouncement of the judgment in the above said second appeals and hence, the
\nsame is a nullity having no legal effect.\n<\/p>\n
\t\t9. In Elisa and others vs. A.Doss<\/a> reported in AIR 1992 Madras 159, a
\nlearned Single Judge of Madras High Court (JUSTICE MR.SRINIVASAN, as he then
\nwas), referring to some of the previous judgments of various Courts, held that
\nthe decree in the said case having been passed against a dead person was a
\nnullity. Similarly, Thiru.JUSTICE P.THANGAVEL, Judge of the High Court, Madras
\nin “The Special Tahsildar (LA) BHEL Unit, Ranipet, N.A.District vs. Govindan and
\nothers<\/a>” reported in 1998(III) CTC 735 has held that the appeal preferred by the
\nReferring Officer against the Award passed by the Subordinate Judge in L.A.O.P.
\nstood abated on the failure of the appellant to take steps to bring the legal
\nrepresentatives of the claimant on record, after the death of the sole claimant
\nduring the pendency of the appeal before the High Court.\n<\/p>\n
\t\t10. It is unnecessary to refer to various decisions holding that the
\nabatement of a suit or appeal on the failure of the plaintiff or the appellant
\nas the case may be, to take steps to bring on record the legal representatives
\nof the deceased appellant or deceased respondent was automatic and that no
\nformal order would be required as abatement of suit or appeal is the result of
\noperation of law. In the case on hand, it is quite obvious that nearly three
\nyears prior to the pronouncement of judgment by the High Court in the second
\nappeals S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848
\nof 1990,  the sole respondent therein had died. Therefore, there cannot be any
\nsemblance of doubt that the appeals had abated before the pronouncement of
\njudgment in the said second appeals.  According to Ex.A.3, Solaiappa Thevar died
\non 16.12.1997. Steps should have been taken to implead the legal representatives
\nwithin 90 days thereafter. As it was not done, the appeals stood abated. After a
\nlapse of nearly 2 years and 8 months after abatement of the second appeals, the
\njudgment in the second appeals was pronounced. Hence the same was nothing but a
\njudgment pronounced against a dead person.\n<\/p>\n
\t\t11. The effect of non-substitution of the legal heirs in the
\noriginal legal proceedings or the appellate proceedings on the respective
\nproceedings has been clarified by the Honourable Supreme Court in “Rangubai Kom
\nSankar Jagtap v. Sunderabai Bhratar Sakharam Jedhe and others<\/a>” reported in AIR
\n1965 Supreme Court 1794. In the said case before the Apex Court, the preliminary
\ndecree passed in the original suit had been challenged in the appeal filed
\nagainst the preliminary decree. During the pendency of the appeal, one of the
\nrespondents in the appeal died and his legal representatives were not
\nsubstituted in the said appeal. But subsequently in the final decree
\nproceedings, they were substituted. In such circumstances, it was held that the
\nsubstitution at one stage of the suit enuring for the benefit of all subsequent
\nstages would not apply and the appeal was held abated. The relevant passages in
\nthe said judgment are reproduced here under:\n<\/p>\n
 \t“(9) Let us now consider the question on principle. A combined reading of
\nOrder XXII, Rr.3,4 and 11, of the Code of Civil Procedure shows that the
\ndoctrine of abatement applies equally to a suit as well as to an appeal. In the
\napplication of the said Rr.3 and 4 to an appeal, instead of “plaintiff” and
\n“defendant”, “appellant” and “respondent” have to be read in those rules. Prima
\nfacie, therefore, if a respondent dies and his legal representatives are not
\nbrought on record within the prescribed time, the appeal abates as against the
\nrespondent under R.4, read with R.11, of O.XXII of the Code of Civil Procedure.
\nBut there is another principle recognized by the Judicial Committee in the
\naforesaid decision which softens the rigour of this rule. The said principle is
\nthat if the legal representatives are brought on record within the prescribed
\ntime at one stage of the suit, it will enure for the benefit of all the
\nsubsequent stages of the suit. The application of this principle to different
\nsituations will help to answer the problem presented in the present case. (1) A
\nfiled a suit against B for the recovery of possession and mesne profits. After
\nthe issues were framed, B died. At the stage of an interlocutory application for
\nproduction of documents, the legal representatives of B were brought on record
\nwithin the time prescribed. The order bringing them on record would enure for
\nthe benefit of the entire suit. (2) The suit was decreed and an appeal was filed
\nin the High Court and was pending therein. The defendant died and his legal
\nrepresentatives were brought on record. The suit was subsequently remanded to
\nthe trial Court. The order bringing the legal representatives on record in the
\nappeal would enure for the further stages of the suit. (3) An appeal was filed
\nagainst an interlocutory order made in a suit. Pending the appeal the defendant
\ndied and his legal representatives were brought on record. The appeal was
\ndismissed. The appeal being a continuation or a stage of the suit, the order
\nbringing the legal representatives on record would enure for the subsequent
\nstages of the suit. This would be so whether in the appeal the trial Court’s
\norder was confirmed, modified or reversed. In the above 3 illustrations one fact
\nis common, namely, the order bringing on record the legal representatives was
\nmade at one stage of the suit, be it in the suit or in an appeal against the
\ninterlocutory order or final order made in the suit, for an appeal is only a
\ncontinuation of the suit. Whether the appellate order confirms that of the first
\nCourt, modifies or reverses it, it replaces or substitutes the order appealed
\nagainst. It takes its place in the suit and becomes a part of it. It is as it
\nwere the suit was brought to the appellate Court at one stage and the orders
\nmade therein were made in the suit itself. Therefore, that order enures for the
\nsubsequent stages of the suit.\n<\/p>\n
\t(10) But the same legal position cannot be invoked in the reverse or
\nconverse situation. A suit is not a continuation of an appeal. An order made in
\na suit subsequent to the filing of an appeal at an earlier stage will move
\nforward with the subsequent stages of the suit or appeals taken therefrom; but
\nit cannot be projected backwards into the appeal that has already been filed. It
\ncannot possibly become an order in the appeal. Therefore, the order bringing the
\nlegal representatives of the 7th respondent on record in the final decree
\nproceedings cannot enure for the benefit of the appeal filed against the
\npreliminary decree. We, therefore, hold that the appeal abated so far as the 7th
\nrespondent was concerned.”\n<\/p>\n
\t\t12. In the instant case, it is not the contention of the
\nappellants\/defendants that the legal heirs of the sole respondent in
\nS.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of 1990,
\nwho died on 16.12.1997, were brought on record. Admittedly, the
\nappellants\/defendants did not take any steps for about three years from the date
\nof death of Solaiappa Thevar to substitute his legal heirs in the above said
\nsecond appeals. On the other hand the judgment was pronounced by the High Court
\nin those second appeals in ignorance of the death of Solaiappa Thevar. In fact,
\nit is not the case of the appellants\/defendants that the said appeals had not
\nabated on the expiry of the period allowed by statute for substitution of legal
\nrepresentatives of the deceased sole respondent therein (Solaiappa Thevar). On
\nthe contrarty, it was contended on behalf of the appellants\/defendants that a
\nduty was cast upon the counsel for the party who died pending the proceedings,
\nto inform his death and the particulars of his legal heirs and that since it was
\nnot done, the legal heirs of Solaiappa Thevar who are the present
\nrespondents\/plaintiffs could not be allowed to contend that the judgment
\npronounced in those second appeals and decrees passed thereon were invalid in
\nlaw and would not be binding upon them. In this regard, it would be convenient
\nto refer to the relevant provisions contained in Rule 4 of Order 22 of the Code
\nof Civil Procedure which runs as follows:\n<\/p>\n
\t\t“Procedure in case of death of one of several defendants or of sole
\ndefendant:-\n<\/p>\n
(1) Where one of two or more defendants dies and the right to sue does not
\nsurvive against the surviving defendant or defendants alone, or a sole defendant
\nor sole surviving defendant dies and the right to sue survives, the Court on an
\napplication made in that behalf, shall cause the legal representative of the
\ndeceased defendant to be made a party and shall proceed with the suit.
\n\t(2) Any person so made a party may make any defence appropriate to his
\ncharacter as legal representative of the deceased defendant.
\n\t(3) Where within the time limited by law no application is made under sub-
\nrule (1), the suit shall abate as against the deceased defendant.
\n\t[(4) The Court whenever it thinks fit, may exempt the plaintiff from the
\nnecessity of substituting the legal representatives of any such defendant who
\nhas failed to file a written statement or who, having filed it, has failed to
\nappear and contest the suit at the hearing; and judgment may, in such case, be
\npronounced against the said defendant notwithstanding the death of such
\ndefendant and shall have the same force and effect as if it has been pronounced
\nbefore death took place.\n<\/p>\n
\t(5) Where –\n<\/p>\n
\t(a) the plaintiff was ignorant of the death of a defendant, and could not,
\nfor that reason, make an application for the substitution of the legal
\nrepresentative of the defendant under this rule within the period specified in
\nthe Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated,
\nand\n<\/p>\n
\t(b) the plaintiff applies after the expiry of the period specified
\ntherefor in the Limitation Act, 1963 (36 of 1963), for setting aside the
\nabatement and also for the admission of that application under Section 5 of that
\nAct on the ground that he had, by reason of such ignorance, sufficient cause for
\nnot making the application within the period specified in the said Act, the
\nCourt shall, in considering the application under the said Section 5, have due
\nregard to the fact of such ignorance, if proved.]<\/p>\n
HIGH COURT AMENDMENT (MADRAS): (i) At the end sub-rule (3), add the words
\n“except as hereinafter provided”.\n<\/p>\n
(ii) Insert the following as sub-rule (4):\n<\/p>\n
\t“(4) The Court whenever it sees fit, may exempt the plaintiff from the
\nnecessity to substitute the legal representative of any such defendant who has
\nbeen declared ex parte or who has failed to file his written statement or who
\nhaving filed it, has failed to appear and contest at the hearing; and the
\njudgment may in such case be pronounced against the said defendant
\nnotwithstanding the death of such defendant, and shall have the same force and
\neffect as if it has been pronounced before death took place.”
\n\tIn the new sub-rule (4) inserted by the Amendment Act, 1976 the amendment
\nmade by the Madras High Court has been incorporated.\n<\/p>\n
\t\t13. Sub Rule (3) makes it clear that in case no application is made
\nunder Sub Rule (1), the suit shall abate as against the deceased defendant. Of
\ncourse Sub Rule (4) gives power to the Court to exempt the plaintiff from the
\nnecessity to substitute the legal representatives of any such defendant who has
\nbeen declared exparte or who has failed to file his written statement or who,
\nhaving filed it, has failed to appear and contest at the hearing. A combined
\nreading of Sub Rules (1), (3) and (4) will make it obvious that the plaintiff or
\nthe appellant shall be the person who is bound to take out necessary application
\nfor bringing the legal representatives of the deceased defendant or respondent,
\nas the case may be, on record, within the time prescribed by law. As per Rule
\n(5), if the plaintiff\/appellant was ignorant of the death of a
\ndefendant\/respondent and could not, for that reason, make an application for the
\nsubstitution of legal representatives of the defendant\/respondent within the
\nperiod specified in the Limitation Act and in consequence of the same the
\nsuit\/appeal abated, then such plaintiff or appellant could file an application
\nfor setting aside the abatement after the expiry of the period specified in the
\nLimitation Act for bringing on record the legal representatives of the deceased
\ndefendant\/respondent, here again within the time limit prescribed by the
\nstatute. Even in case of failure to apply for setting aside the abatement within
\ntime, such an application could be filed along with an application under Section
\n5 of the Limitation Act to condone the delay on the ground that he had, by
\nreason of ignorance of the death of the defendant\/respondent, had sufficient
\ncause for not making the application within the period specified in the
\nLimitation Act.\n<\/p>\n
\t\t14. A combined reading of all those clauses will make it very clear
\nthat even the ignorance of the plaintiff or the appellant will not save the
\nappeal from abatement, if steps are not taken within the period of limitation
\nfor substituting the legal representatives of the deceased defendant\/respondent,
\nas the case may be. Therefore, this Court entertains no doubt regarding the fact
\nthat S.A.Nos.1425 of 1989, 1426 of 1989, 1660 of 1989, 1772 of 1989 and 848 of
\n1990 stood abated long before the judgment was pronounced in the said second
\nappeals. It is not the case of either party that exemption was granted from
\nsubstituting the legal heirs of Solaiappa Thevar in those second appeals under
\nSub Clause (4) of Rule (4), Order XXII of the Code of Civil Procedure. Such an
\nexemption also could not have been granted, in the light of the admitted fact
\nthat Solaiappa Thevar did not either remain exparte or fail to contest the
\nappeal after entering appearance.\n<\/p>\n
\t\t15. The appellants\/defendants in the instant case who plead
\nignorance of the death of Solaiappa Thevar during the pendency of the previous
\nsecond appeals, could have very well applied, soon after they came to know that
\nSolaiappa Thevar died long before pronouncement of judgment in the said second
\nappeals causing abatement of the same, for setting aside abatement caused by the
\ndeath of Solaiappa Thevar along with an application for condoning the delay in
\nfiling the application to set aside abatement and a further application for
\nsubstitution of the legal representatives of Solaiappa Thevar as respondents in
\nthose second appeals so that the legal representatives of Solaiappa Thevar would
\nhave got a chance to contest the appeals and urge the High Court in those second
\nappeals to uphold the judgment and decrees of the first appellate Court therein.
\nIt is quite clear from the fact that the impugned distraint notice was issued to
\nthe respondents herein\/plaintiffs in the suit that the appellants\/defendants
\nwere very much aware of the fact that Solaiappa Thevar died before the issuance
\nof the said distraint notice. Assuming that the appellants\/defendants might have
\ngot the knowledge that Solaiappa Thevar was no more only subsequent to the
\npronouncement of judgment by the High Court in the previous second appeals and
\nthat they had no idea as to whether the death occurred during the pendency of
\nthe former second appeals or not and hence, they tried to proceed against the
\nrespondents herein\/plaintiffs under the Revenue Recovery Act as the legal
\nrepresentatives of Solaippa Thevar, it cannot be disputed that the factum of
\ndeath of Solaiappa Thevar during the pendency of the former second appeals was
\nbrought to the notice of the appellants\/defendants when the summons in the
\npresent suit was served on them. At least thereafter they could have taken steps
\nfor the revival of the said second appeals by filing petitions to set aside the
\nabatement, to condone the delay in filing the petition for setting aside
\nabatement and to substitute the legal representatives of Solaiappa Thevar.
\nInstead of doing so, the appellants\/defendants simply contested the present suit
\ncontending that the inaction on the part of the respondents\/plaintiffs to
\nintimate the death of Solaiappa Thevar and take steps to get themselves
\nimpleaded in the former second appeals would disentitle them from contending
\nthat the former second appeals had abated and the judgment in those second
\nappeals was pronounced after their abatement. This Court is not in a position to
\naccept the said contention of the appellants\/defendants. It seems the said
\ncontention has been raised in ignorance of the effect of abatement. The effect
\nof abatement is that the suit or appeal in respect of the deceased party shall
\nbe considered no more pending.\n<\/p>\n
\t\t16. When an occasion arose before the Supreme Court  to consider the
\neffect of a judgment in a second appeal pronounced after the second appeal had
\nabated, it was held the second appeal should be taken to have abated by
\noperation of law; that there could not be any merger of the judgment in the
\nsecond appeal with the decree passed by the first appellate Court and that the
\ndecree passed by the first appellate Court must be deemed to have become final.
\nIt was held so in “Amba Bai v. Gopal<\/a>” reported in AIR 2001 Supreme Court 2003.
\nThe following was the observation made therein:\n<\/p>\n
\t\t“……As the judgment in the Second Appeal was passed without the
\nknowledge that the appellant had died, the same being a judgment passed against
\nthe dead person is a nullity. When the second appellant Radhu Lal died on
\n14.12.1990, his legal representatives could have taken steps to get themselves
\nimpleaded in the Second Appeal proceedings and as it was not done, the Second
\nAppeal should be taken to have abated by operation of law.”…..
\n\t\tIn “Rajendra Prasad v. Khirodhar Mahto”, reported in 1994 Supp(3)
\nSCC 314, it was held that the preliminary decree became final when an appeal
\nfiled against a preliminary decree in a partition suit was allowed to abate.
\n\t\tIn “Bibi Rahmani Khatoon v. Harkoo Gope<\/a>“, reported in AIR 1981 SC
\n1450, it was observed as follows:\n<\/p>\n
\t“If a party to an appeal or revision dies and either the appeal or
\nrevision abates, it will have an impact on the judgment, decree or order against
\nwhich the appeal or revision is preferred. In fact such judgment, decree or
\norder under appeal or revision would become final.”\n<\/p>\n
\t\t17. Of course in some cases, it has been observed that a judgment
\npronounced against a dead person would not be necessarily a nullity. But such
\nobservation is applicable to cases where the judgment was pronounced after the
\ndeath of the party and before the expiry of the period of limitation for
\nsubstituting his legal representatives. In other words if the judgment is
\npronounced before the suit or appeal abates, then the judgment shall not be a
\nnullity. In such cases the legal representatives of the deceased party should
\ncome forward to get the judgment set aside and the appeal or suit reheard. But
\nthe position will be different when the suit or appeal is allowed to get abated.
\nA judgment pronounced after the abatement would be a judgment pronounced in a
\nnon-existent case and hence, a nullity.\n<\/p>\n
\t\t18. In this case, the respondents\/plaintiffs have clearly
\nestablished that the judgment of the High Court in the former second appeals was
\npronounced nearly three years after the death of Solaiappa Thevar, the
\nrespondent therein and hence, the same was a nullity. The necessary corollary is
\nthat the judgment of the lower appellate Court in the appeals concerned in those
\nsecond appeals stood unaffected. As per the judgment of the lower appellate
\nCourt concerned in those second appeals, the distraint notice issued to
\nSolaiappa Thevar for the recovery of damages for the loss occasioned to the
\nappellants\/defendants stood declared null and void and the appellants\/defendants
\nhad been injuncted from proceeding with the recovery of the said sum based on
\nthe said notice. The present distraint notice impugned in the instant case is
\nnothing but an attempt to enforce the said claim of the appellants\/defendants
\nagainst Solaiappa Thevar. Therefore, this Court finds no defect or infirmity in
\nthe finding of the lower appellate Court that the impugned distraint notice
\nissued by the appellants to the respondents was null and void and legally
\nineffective. On that score alone, the appellants in the second appeal are bound
\nto fail.\n<\/p>\n
\t\t19. It is the further argument advanced by the learned Government
\nAdvocate that after the issue of a distraint notice and during the pendency of
\nthe suits filed by Solaiappa Thevar, a partition was effected and that even the
\nproperties which he got to his share in the said partition were bequeathed in
\nfavour of his brother’s son by a Will dated 13.10.1997 with a mala fide
\nintention of keeping the properties beyond the reach of the respondents. This
\nCourt is of the view that it is unnecessary to go into the question whether the
\nbequeath made by Solaiappa Thevar in favour of his brother’s son was made with
\nmala fide intention, since the very liability of Solaiappa Thevar himself to pay
\ndamages for breach of contract is the issue involved in this case.  As it was
\npointed out supra, there are decrees in favour of Solaiappa Thevar declaring the
\ndistraint notices issued against him null and void and restraining the
\nappellants herein\/defendants from recovering the amounts mentioned therein as
\ndamages for breach of contract. As such, there won’t be any question of
\nrecovering the same from the properties of Solaiappa Thevar. Therefore, the said
\ncontention of the learned Government Advocate also deserves to be rejected.\n<\/p>\n
\t\t20. Damages for breach of contract had been sought to be recovered
\nfrom Solaiappa Thevar under the Revenue Recovery Act by virtue of Section 52 of
\nthe Tamil Nadu Revenue Recovery Act, 1864. Therefore, Section 58 shall not be
\napplicable. As damages were sought to be recovered for a breach of contract, the
\nvery basis on which the same was claimed and the quantum of damages could be
\ncanvassed in a civil Court unless the jurisdiction of the civil Court is ousted
\neither expressly or by necessary implication. It has not been contended that the
\ncivil Court’s jurisdiction was ousted in respect of the breach of contract
\ncommitted by Solaiappa Thevar either by a statute applicable to the contract or
\nby a provision incorporated in the terms and conditions of the contract. Even
\notherwise the question of jurisdiction was germane to the former legal
\nproceedings in which the judgment and decrees in question were passed. The first
\nappellate Court in the former cases decided the cases in favour of Solaiappa
\nThevar holding that the trial Court did have the jurisdiction to entertain the
\nsuit. As such, the question of jurisdiction of the Court to entertain the former
\nsuits cannot be raised in the present suit. The present suit has been filed on
\nthe basis that there are binding decrees of declaration and injunction against
\nthe appellants\/defendants from recovering the damages allegedly due from
\nSolaiappa Thevar. Therefore, the said contention of the learned Government
\nAdvocate, representing the appellants, also has got to be discountenanced.\n<\/p>\n
\t\t21. The lower appellate Court has scrupulously considered all the
\naspects and has held that the appellants\/defendants could not recover any amount
\nfrom the respondents\/plaintiffs as damages for the breach of contract allegedly
\ncommitted by Solaiappa Thevar; that the judgments and decrees passed in
\nA.S.Nos.155 of 1984, 156 of 1984, 157 of 1984, 159 of 1984 and 160 of 1984 which
\nhave become final due to the abatement of the second appeals preferred there
\nfrom, are binding on the appellants herein\/defendants in the instant case and
\nthat hence, the respondents\/plaintiffs are entitled to the reliefs of
\ndeclaration as well as injunction as prayed for by them. Valid and cogent
\nreasons have also been assigned by the learned lower appellate Judge. This Court
\nis not able to find any infirmity or defect in the judgment and decree of the
\nlower appellate Court. The lower appellate Court being the final Court of appeal
\non facts, its finding on facts cannot be interfered with in the second appeal
\nunless the same amounts to a perverse finding. Questions of law rightly decided
\nby the lower appellate Court will not amount to substantial questions of law. In
\nthis case the appellants have failed to show that any question of law has been
\nwrongly decided by the lower appellate Court. Hence this Court is not convinced
\nthat any substantial question of law has arisen for decision of this Court in
\nthis second appeal.\n<\/p>\n
\t\t22. For all the reasons stated above, this Court comes to the
\nconclusion that there is no merit in the second appeal and the same deserves to
\nbe dismissed at the stage of admission itself.\n<\/p>\n
\t\t23. In the result, this Second Appeal is dismissed. There shall be
\nno order as to payment of costs, as the second appeal is dismissed at the stage
\nof admission itself.\n<\/p>\n
SML<\/p>\n
To<\/p>\n
1.The District Munsif Court,
\n  Kovilpatti<\/p>\n
2.The Sub Court,
\n  Kovilpatti.\n<\/p><\/p>\n","protected":false},"excerpt":{"rendered":"
Madras High Court The Divisional Excise Officer vs Mariammal on 26 November, 2007 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 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,13],"tags":[],"class_list":["post-116362","post","type-post","status-publish","format-standard","hentry","category-high-court","category-madras-high-court"],"yoast_head":"\nThe Divisional Excise Officer vs Mariammal on 26 November, 2007 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/the-divisional-excise-officer-vs-mariammal-on-26-november-2007\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"The Divisional Excise Officer vs Mariammal on 26 November, 2007 - 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