Decided on May 08,1954

MELA RAM Appellant
AMAR NATH Respondents


- (1.) This is an application under Order 22 Rule 4, C. P. C., and it is supported by a petition under Section 5 of the Limitation Act and an affidavit. The application arises under the following circumstances. On 30-12-1952, the learned District Judge of Mandi and Chamba dismissed a suit brought by Mela Bam and others against Kanhya Lal and others. Kanhya Lal, defendant aforesaid, died on 26-11953, leaving two sons, Amar Nath and Jagan Nath. On 2-4-1953, an appeal was presented by Mela Bam and others against the judgment and decree of the District Judge. Since Kanhya Lal was dead, his sons, Amar Nath and Jagan Nath, were impleaded as respondents 1 and 2 in the memorandum of appeal. At the foot of the memorandum of appeal, a note was made that since Kanhya Lal, defendant, had died on 26-1-1953, his sons (who were his legal representatives) were impleaded as respondents 1 and 2. An office objection was raised to the impleading of Amar Nath and Jagan Nath without an application. In answer to the office objection, the appellants represented that since Kanhya Lal had died after the decision of the suit, no application was necessary. To be on the safer side, however, an application, purporting to be under Order 22, Rule 4, along with another under Section 5 of the Limitation Act supported by an affidavit, was filed by the appellants on 7-5-1953. On this office reported that it was beyond time by 11 days. While admitting the appeal, my learned predecessor made it clear that the admission was subject to objection. A preliminary date was fixed for disposal of the application under Order 22, Rule 4.
(2.) To-day, I have heard learned counsel for the parties. Sri Ved Vyas filed a memorandum of appearance for Jagan Nath.
(3.) The point for consideration is whether in a case like this, an application under Order 22, Rule 4 was necessary at all. A bare perusal of Order 22, Rule 4 makes it clear that it applies only to pending proceedings, i.e. suits or appeals. If any authority is necessary reference may be made to--'Ven-kata Narasimhan v. Konda Beddi', AIR 1951 Hyd 55 (A), where it was held that provisions of law contained in Order 22, Rule 4, Order P. C., contemplate pending proceedings. Learned counsel for the petitioners cited--'Pitamberdas v. Bhawanilal' AIB 1932 Sind 220 (B), where it was held: "Order 22 applies to joinder of legal representatives of a person who is properly on the record, and dies pending the suit or appeal as the case may be, but not to the case where a person is dead long before suit or appeal." In the present case, Kanhya Lal died on 26-1-1953. i.e. after the suit had been disposed of by the District Judge and before the appeal was presented to this Court. Therefore, the appellants Impleaded the sons of Kanhya Lal as respondents 1 and 2 in the memorandum of appeal (it may be noted that it is not disputed that Amar Nath ana Jagan Nath are the legal representatives of Kanhya Lal). It does not appear that a separate application was necessary to implead Amar Nath and Jagan Nath. I am supported by a ruling of the Lahore High Court, cited by learned counsel for the petitioners, and reported in--'Risal Singh v. Chandgi', AIB 1939 Lah 34 (C). There, following--'Ramananda v. Minachi Ammal', Mad 236 (D), it was held: "The provisions of Order 22 do not apply where a party dies after a final decree has been passed. If a plaintiff sues and dies after his suit has been dismissed, his legal representative may appeal from the decree without making any application to be brought on the record in his place." On the same analogy, I would say that it the defendant dies after the suit has been decided his legal representatives may be impleaded in the memorandum of appeal, without a separate application to bring them on the record in place of the deceased defendant. In--'3 Mad 236 (D)', referred to above, the facts were that the plaintiff died soon after the decision of his suit by the trial Court. An appeal was preferred on behalf of a minor, claiming to be his legal representative, but no application was made to have the name of the minor entered in the record instead of the name of the plaintiff. The District Judge dismissed the appeal on the ground that sixty days had expired before the appeal was filed. It was held by the Madras High Court: "The Judge seems to have acted upon Article 171 of Schedule II to the Limitation Act, which provides that sixty days from the date of the plaintiff's death shall be the period of limitation for an application made under Section 363 or 365 of the Civil P. C., by a person claiming to be the representative of a deceased plaintiff. This limitation, however, should be applied strictly to an application made in the circumstances to which the sections mentioned relate. The section suggested as being in point in this case is Section 365. But we think it clear from Section 366 and other parts of this chapter of the Code that Section 365 relates only to the case of the plaintiff dying before judgment; otherwise, it does not appear how the suit can abate, if it has already been disposed of. We do not think that Section 365 has any application to the case of the death of the plaintiff after decree, and of his representative wishing to appeal." Learned counsel for the petitioners also cited--'Chanderdeo Chaube v. Megh Narain', AIR 1933 All 111 (E), wherein Niamatullah, J., of that High Court observed as follows: "Order 22 requires applications for substitution of a deceased plaintiff or defendant, in case any of- them dies during the pendency of the suit. The provisions of that order have been made applicable to cases in which one of the appellants or respondents dies during the pendency of the appeal. There is no law to be found either in the Civil Procedure Code or elsewhere which makes it necessary that any substitution proceedings should take place where one of the parties dies between the decree and the filing of the appeal. Where, however, a party dies after the conclusion of the trial, but before the decree is passed, the decree must under Order 22, Rule 6 be taken to have been passed in his lifetime. However, Rule 3, Ch. 11 of the Allahabad High Court Rules requires an application by the legal representatives of a party dying after the decree to apply for permission to appeal if one is to be preferred. For compliance with that rate there is no limitation and all that is necessary- is that the appeal itself should be filed within time. Article 176, Limitation Act, does not apply to an application of the kind contemplated by Rule 3." My attention was also invited to--'Daw Seta Tin v. Chinese Kwan Tein', AIB 1937 Rang 199 (F), where the decision was as follows: "Order 22, B. 3, Civil P. C., which relates to the abatement of a suit or an appeal during the progress or hearing of that suit (or appeal) has no application in cases where original or appellate decrees have been passed before the death in question. The limitation for appeal in such a case therefore is the usual period of 90 days, not from the death of the appellant, but from the date of the decree." In--'Banke Bihari Lal v. Mahadeo Prasad', AIR 1953 All 97 (G), a Division Bench of that High Court observed as follows: "We entirely agree, in this case, with the learned Dist. Judge that since Shrimati Brij Rani had died on 24-9-1946, prior to the filing of the appeal by the appellants in the Court of the learned District Judge, there could be no substitution of the name of Mahadeo Prasad in place of that of Shrimati Brij Rani under Order 22, Civil P. C. What was required was that the appellant should have impleaded Mahadeo Prasad as the respondent straightway in the appeal." In the present case, the appellants have, very properly, impleaded the sons of Kanhya Lal as respondents in the memorandum of appeal and thereby they have done all that they were required to do. My attention was also invited to--'Sanat Kumar v. Tarapada Dutta', AIR 1948 Cal 36 (H), where, with reference to an existing practice in that High Court, it was held: "The effect of Rule 6, Order 22, Civil P. C., is simply to transfer death in point of time from its actual date forward to some date after the delivery of the judgment; or to put it in another way, by a fiction, the judgment which was actually delivered some time after the conclusion of the hearing, is deemed to have been delivered on the date on which the hearing was concluded. The result, therefore, is that such cases are placed on the same footing as those in which a party dies after the decree of the lower Court and before an appeal is filed to the Court of appeal. The practice in the Calcutta High Court in the latter case is always to file an application for substitution and the same rule must be followed in a case where an appellant dies after the conclusion of the hearing in the lower Appellate Court but before the judgment is pronounced." There is no such practice in this Court, nor do the Rules and Orders of this Court provide for an application under circumstances as arise in the present case.;

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