Decree passed after the death of a party without the legal representatives being brought on record is a nullity.

Stodart, J.

1. This petition, C.R.P. No. 284, is by the minor sons of Pendyala Subba Rao and is a sequel to Order Rule P. No. 1605 of 1932. In C.M.P. 4021 petitioners apply to be recognized as Subba Raoa legal representatives and this petition is granted. Subba Rao filed C.R.P. 1605 in this Court to vacate a decree which had been passed against him for Rs. 628. The decree had been passed on an award and no appeal lay against it. That is why Subba Rao had to come by way of a petition to the High Court under Section 115, Civil P.C. This Court set aside the decree and directed the trial Court to make a fresh decree after giving Subba Rao an opportunity to substantiate his objections to the award. That order was passed on 10th May 1934. But when the trial Court took up the suit for retrial, it discovered that Subba Rao had died on 7th January 1934, a fact which of course the High Court did not know when it passed orders in C.R.P. No. 1605.

2. The trial Court without bringing on the present petitioners as Subba Raos representatives held that the High Courts order was not valid and declared that the decree already made in the suit must stand. C.E.P.No. 284 is to set aside this order and to affirm the order passed in C.E.P.No. 1605 and to direct the trial Court to proceed to determine the suit as directed by that order. In my opinion the order made by the trial Court is right and the decree already passed in the suit must stand. It seems to me that the matter is free from all doubt. Ninety days after Subba Raos death, that is to say on 7th April 1934, Subba Raos potion abated since his legal representatives; did not apply to be brought on the record and to continue that petition. After 7th (April there was no petition before the high Court and its order passed in ignorance of the fact of abatement was a nullity. Order 22, Rule 3 and 4 govern the case. Where the sole plaintiff in a suit dies, the Court shall cause his legal representative to be made a party and shall proceed with the suit. But the Court cannot do this except upon an application made to it and if no application is made within the time allowed by law the suit shall abate. Article 176 of Schedule 1, Limitation Act, prescribes ninety days as the time in which an application of this kind must be made. The C.E.P. No. 1605 therefore abated ninety days after 7th January. Elaborate and skilful arguments have been addressed to me by the learned Counsel for these petitioners. He contends first that in the case of petitions under Section 115, Civil P.C., it does not matter whether the parties are dead or alive at the time the order is passed, since in such case the matter is entirely one between the High Court and the trial Court. To admit such a principle would be to deny the fundamental right of parties to a litigation to be heard. Learned Counsels second argument is that Order 22 does not apply to proceedings Under Section 115, and therefore there can be no abatement in the case of a petition filed under that auction. But if Order 22 does not apply, the natural consequence is that on the death of a party the petition abates at once. Moreover, in this Court, at any rate, and in the Calcutta High Court Annadamoyi Dasi v. Rudra Mahanti (1913)18 C.L.J. 141, Order 22 has always been applied to petitions under Section 115. Still another argument is that there have been cases where decrees passed after the death of a party have not been treated as a nullity. And the cases have been cited to me. But in none of them had the suit or other proceedings abated at the time of the decree. In all of them there was at the time of the decree a case before the Court which it was necessary to determine and which could not be dismissed forthwith. If in these cases the Court had become aware of the death of the deceased party, it could not have proceeded forthwith to pass a decree. It would have had to adjourn the case till the expiration of the time allowed by law for an application to bring on