The legal representative of a deceased party to a decree can file an appeal straightaway without any formal petition to accept the cause title or recognize them as the legal representative of the deceased.

JUDGMENT

(Prayer: Review Application filed under Order 47 Rule 1 r/w Section 114 of the Civil Procedure Code, to set aside the fair and decreetal order dated 28.01.2014 in M.P(MD)No.1 of 2014 in S.A(MD)SR.No.45417 of 2010 against A.S.No.22 of 2005 against O.S.No.769 of 2004 on the file of this Court.)

1. This Review Application is filed to set aside the order dated 28.01.2014 passed in M.P(MD)No.1 of 2014 in SA(MD)SR.No.45417 of 2010 against A.S.No.22 of 2005 against O.S.No.769 of 2004 on the file of this Court.

2. The learned counsel for the petitioner has submitted that the first respondent filed a suit in O.S.No.769 of 2004 on the file of the District Munsif Court, Dindigul against the petitioner represented by its the then manager S.P.Venkatachalapathy seeking for permanent injunction. That suit was decreed. Aggrieved by the decree, the petitioner through the manager preferred an appeal in A.S.No.224 of 2005 on the file of Sub Court, Dindigul and the same was dismissed. Against the judgment of First Appellate Court, the petitioner through its present manager S.P.Ramamoorthy filed the Second Appeal with application in M.P(MD)No.1 of 2014 to accept the cause title in the memorandum of grounds of appeal stating that the then manager died during the pendency of A.S.No.224 of 2005. But this Court dismissed that petition and directed the petitioner to get the decree corrected from the First Appellate Court. It is a settled principle that if a party to the decree died after passing of the decree, the legal representative of the deceased can file appeal straightaway without any petition such as a petition to accept the cause title or a petition to recognize him as the legal representative of the deceased. However, the petitioner filed the petition to accept the cause title. Without considering the principle this Court has dismissed the petition. The error is apparent in the impugned order. So, the order of this Court may be reviewed and the petition may be allowed. In support of his argument, the learned counsel for the petitioner relied on the judgment of this Court reported in 2016 (1) CTC 61 in the case of Amsavalli (Died) and Others Vs. Sarangabani, wherein it is held in paragraph No.26 as follows:

26. To sum up:-

(i) In respect of an appeal presented against a dead person, who died after the judgment of the lower Court and before the appeal is presented, Order XXII of C.P.C. is not applicable.

(ii) (a) If an appeal is presented against a person who is dead on the date of presentation,without knowing that the said person has already died after the judgment of the Lower Court, the Court may under Section 153 of the C.P.C. permit the appellant to amend the cause title or may return the appeal memorandum for amendment and for re-presentation.

(b) On the date when such an application under Section 153 of C.P.C. is filed for amending the cause title, if the period of limitation for appeal had already expired, the appellant shall file an application under Section 5 of the Limitation Act, seeking to condone the said delay.

(c) If the delay is condoned, then the petition to amend the cause title of the appeal memorandum may be allowed.

(d) On the date when such an application under Section 153 C.P.C. is filed for amending the cause title if the period of limitation for the appeal has not expired, then the said application may be allowed and accordingly the cause title may be amended thereby including the legal representatives of the deceased as parties to the appeal.

(iii) If a party to the decree had died before the presentation of the appeal and the same is known to the appellant, he can straightaway file the appeal against the legal representatives of the deceased without any petition such as a petition to accept the cause title or a petition to recognize the legal repr