DESAI, C.J. - (1.)THE decree was passed jointly against the applicant-appellant (The Union of India) and the authorized controller. During the pendency of the application by the Union of India for a certificate under Art. 133 of the Constitution the authorised controller, who was an opposite party along with the plaintiff, died. This application for the substitution of his legal representatives in the application for a certificate has been made more than 150 days of his death. There is an application under S. 5 of the Limitation Act of 1908 for treating the application as within time. The learned Additional Advocate-General, however, contends that the application for substitution is not governed by O. 22 of the C.P.C. and the limitation in this case is governed not by Art. 120 but by Art. 137 of the Limitation Act of 1963. Article 120 provides a period of 90 days limitation for an application "under the Code of Civil Procedure to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent, made a party" and the period commences on "the date of death of the plaintiff, appellant, defendant or respondent as the case may be" Article 137, which is a residuary Article, provides 3 years period of limitation commencing on the date on which the right to apply accrues for "any other application for which no period of limitation is provided elsewhere in this Division".
(2.)THE first question is whether O. 22 governs an application for a certificate under Art. 133 of the Constitution. Order 22 applies in a suit and in an appeal; it is not made applicable expressly to any other proceeding such as an application for a certificate under Art. 133. By S. 141 of the C.P.C. the procedure provided in the Code in regard to suits is to be followed, "as far as it can be made applicable, in all proceedings in any Court of civil jurisdiction". A High Court is a Court of civil jurisdiction but the question is whether when it issues a certificate under Art. 133 it acts as a Court of civil jurisdiction and an application for a certificate is a proceeding in such a Court. This Court certainly acted as a Court of civil jurisdiction when it disposed of the appeal in the suit brought against the applicant and the authorised controller. Under Art. 133 an appeal lies from the decree passed by it to the Supreme Court provided a certain certificate is granted by it. Article 133 does not lay down any procedure for obtaining a certificate referred to in it; it does not even require an application for a certificate to be made by a party to the decree wishing to appeal from it. Before issuing a certificate this Court has certainly to decide whether the facts to be certified exist or not; it can issue a certificate only if they exist and must refuse it if they do not. It may be said that deciding whether they exist or not is exercising civil jurisdiction and. therefore, the Court can be said to act in exercise of civil jurisdiction when deciding whether to giant, or not to grant, the certificate. There has to be a proceeding before it; unless there is a proceeding it cannot adjudge the claim for a certificate. Its deciding whether the facts exist or not is itself a proceeding. Therefore, when the application was made for certificate there came into existence a proceeding in a Court of civil jurisdiction and the Civil Procedure Code applies to it. But it applies as it stands; it is not to be modified or altered in any manner. It is O. 22 that applies to the proceeding, i.e., its provisions apply but they can be given effect to only if the facts of the application come within the scope of their language. It deals with the death, marriage and insolvency of a plaintiff or a defendant or an appellant or a respondent. An appeal under the Code of Civil Procedure is a proceeding in a Court of Civil jurisdiction and is governed by O. 22. But in an appeal there is no longer any plaintiff or defendant, there are instead an appellant and a respondent and that is why express provision has been made in R. 11 (of O. 22) providing that the word plaintiff includes an appellant and the word defendant, a respondent. Without that provision, though O. 22 applies in an appeal, its provisions could not be given effect to because they refer to plaintiffs and defendants and not to appellants and respondents. Similarly, without a provision that "plaintiff" includes an applicant and "defendant", an opposite party, even though O. 22 may apply to an application for a certificate it is not possible to give effect to its provisions because in such a proceeding there are only an applicant and an opposite party and not a plaintiff and a defendant. Without the required authority one cannot give effect to the provisions of the Order as if "plaintiff" included "applicant" and "defendant", "opposite party". In such a proceeding the Court is concerned with the death of an applicant or an opposite party and O. 22 does not deal with the death of an applicant or an opposite party; so even if it applies, the facts do not come within the scope of its provisions and they cannot be given effect to.
The proceeding commencing on an application for a certificate under Art. 133 is similar to a proceeding commencing on an application for revision under S. 115 of the C.P.C. or an application under O. 22 for substitution of the legal representatives of a deceased defendant in a pending suit, or an application for leave to appeal to the Supreme Court or a reference under S. 66(1) of the Indian Income-tax Act or an application under O. 33 for permission to sue as a pauper. It has been held that O. 22 does not apply to the death of a party in these proceedings; see Jowala Singh v. Malkan, AIR 1958 Punj 171, Noor Ahmad v. Chattomal, AIR 1934 Sind 36, Commr. of Income-tax v. I.D. Varshani, AIR 1953 All 414, Khatijanbai v. Nur Mahomed, AIR 1929 Sind 136 and Manindra Kumar Bose v. Santi Rani Biswas, AIR 1951 Cal 518. In the case of Jowala Singh, AIR 1958 Punj 171, Tek Chand, J. applied the principle of inclusio unius to hold that O. 22 does not govern the death of parties to applications and that Art. 176 (corresponding to Art. 120 of the New Act) is not applicable. He disagreed with Chakrapani v. Biharilal, AIR 1953 Madh Bha 272 and held that S. 141 cannot be availed of to make O. 22 applicable to a revision application under S. 115, C.P.C. and relied upon Thakur Prasad v. Fakirullah, (1895) ILR 17 All 106. In Khatijanbai, AIR 1929 Sind 136, Rupchand, A.J.C., held that an application for permission to sue as a pauper cannot be dismissed by applying Rule 4 of O. 22 read with S. 141; he observed that even if O. 22 applies to such an application the penalty provided by R. 4 cannot apply as an application is not a suit. In Noor Ahmads case, AIR 1934 Sind 36, Aston and Rupchand, A. J. Cs. stated that prior to an application for leave to appeal to the Privy Council being granted there is no appellant or respondent and there is only an applicant and an opposite party and that Art. 120 does not apply in terms. The learned Assistant Judicial Commissioners approved of the decision in Khatijanbai, AIR 1929 Sind 136. In the case of I.D. Varshani, AIR 1953 All 414 Malik, C.J. and Bhargava, J. said that Arts. 176 and 177 of the Limitation Act of 1908 referring to a plaintiff, defendant, appellant or respondent cannot be said to be applicable to an application under S. 66(1) of the Income-tax Act and that the death of a party in such an application is governed by the residuary article. The reasons given in these cases for holding that O. 22 does not apply to the death of a party in these proceedings justify the decision that it does not apply to the death of a party in an application for a certificate. It is to be noted that at the stage of an application for a certificate there is no appellant and respondent; it was pointed out in Baldeo Pershad v. Dwarika Pd. 1957 All LJ 316 : ((S) AIR 1957 All 334 (KB)), that an application for a certificate is only a .step anterior to an appeal and that an appeal comes into existence only when it is granted. There is appellant and respondent only when there is an appeal; prior to the coming into existence of an appeal there are no appellant and respondent and consequently death of a party to such an application is not within the scope of O. 22 which deals with death of a plaintiff, defendant appellant or respondent only.

(3.)THERE is no other law dealing with death of a party which might apply to the death of a party to an application for a certificate. The Rules of Court do not contain any rule regarding death of a party to an application for a certificate. Rule 19 of Chap. XXIII of Rules of Court lays down that substitution of legal representatives in case of death is governed by Rr. 12 and 13 of O. XVI of Supreme Court Rules, but Rr. 12 and 13 of O. XVI of Supreme Court Rules deal with death of a party after a certificate has been granted. The Supreme Court Rules do not deal with the procedure to be followed before a certificate is granted. The result is that there is no rule which requires an application to be made for substitution of the legal representatives of a deceased party in an application for a certificate.