M. P. Mehrotra, J. - (1.) THIS application dated 21st July, 1976 purports to be under Order 22 rule 10 C. P. C. (though it is wrongly headed as section 22 rule 10 C. P C.). The application has been moved by one Maliabir Prasad Gupta s/o Late Shri Gopal Lal Gupta claiming that he is an assignee and, therefore, he seeks to be impleaded as a party in the appeal in place of the appellants. The brief allegations in the application are these: The suit giving rise to the instant second appeal was filed on the allegations that on an agreement entered into the year 1917 between the predecessor-in-interest of firm Radha Krishna Sheo Datt Rai and Oudh and Ruhel Khand Railway the firm was permitted to construct an assistant and spur siding on the main line to the Mill premises of the firm. The firm constructed the siding on its own costs and was the owner thereof. The railway was not entitled to jofn any other spur siding with the said firm siding for the benefit of any other person Shankar Hydraulic Press was a rival concern set up after the said agreement and the railway in contravention of the agreement aforesaid jofned the siding of the firm with a spur siding constructed for the benefit of the said rival firm, Shanker Hydraulic Press. The relief which was sought in the suit was for a prohibitory injunction in the beginning and when the disputed spur siding was constructed a relief of mandatory injunction was claimed for the removal of the spur siding. It is alleged that after the decision of the lower appellate court in 1959 certain developments took place, the effect of which was that the applicant became the assignee of the entire concern owned by the dissolved firm Radha Krishan Sheo Datta Rai. It is said that the respondent, Union of India, has served notice dated July 19, 1976. alleging that the agreement of 1917 and the subsequent agreement of 1944 stood determined. On the basis of the said facts the applicant prayed that he might be permitted to continue the appeal and he should be impleaded as an appellant in the appeal. The application has been opposed by the Union of India. It has filed a counter-affidavit wherein it has been contended that in fact there was no assignment as claimed by the applicant and that no assignment was validly possibly in view of clause 13 of the agreement relating to the main siding. Threfore, the alleged assignment, even if a fact, would be vofd and ineffective. It has also been contended that the applicant, Maliabir Prasad Gupta, sought to be brought on record as a legal representative of the deceased, Ram Kumar, but his prayer was rejected by the Court. This application is said to be an attempt to circumvent the order of the Court refusing to bring on record the applicant, Maliabir Prasad, as an heir of the deceased appellant, Shri Ram Kumar. An affidavit-in-rejofnder has been filed on behalf of the applicant.
(2.) THE first question which has arisen in these proceedings is whether the afforesaid application under Order 22 rule 10 is hit by the rule of limitation. Learned counsel for the Union of India, Shri Vinod Swarup, contended that the residuary Article 137 would be applicable to every application under the Civil Procedure Code for which no specific period of limitation is prescribed under some other article of the Limitation Act. He placed reliance on Chandradeo Pandey Sukhaeo Rai A. I. R. 1972 All. 504 where is has been laid down as under: "Article 137 of the Limitation Act, 1963 being a residuary article must be construed ejusdem generis with other articles dealing with applications and as most of other articles deal with applications under the Code of Civil Procedure, Article 137 should also be held to apply to applications under that Code. The application for substitution of heirs in a revision is an application under section 151 Civil Procedure Code and hence the period of Limitation for bringing the heirs of deceased opposite party in revision is three years under this article. ' Learned counsel also placed reliance on State of U. P. v. Shaikh Asghar, A. I. R. 1963 All. 357 where a learned single Judge has laid down as under: "Where it is found that the plaintiff died heirless and that the property has escheated to the Government the court should allow the substitution, bringing the State Government on record as plaintiff, not as a legal representative but as a person upon whom the interest of the plaintiff devolved under O. 22 Rule 10, C P. C. This can be done within three years under the residuary article 181 and not within 90 days under article 176." Learned connsel also referred to U. P. Sunni Central Board oj Waqf v. Khursheed Haider 1971 A. L. J. 1126; J. Lakshmi Bai v. P. Appa Ruo1969 S. C. 1335; State of Bank Hyderabad v. U. A. Bhide 1970 S. C. 196 and Nityanand v. L. I. C. oj India A. I. R. 1970 S. C. 209. They do not seem to be of assistance in the present controversy. In 1971 A. L. J. 1126 it was laid down that Article 137 covers in its ambit applications and objections under special laws and that it is not confined only to applications under C. P. C. In the aforesaid three Supreme Court cases the Supreme Court ruled that Article 137 cannot be applied to applications under the Industrial Disputes Act because these applications are made to Tribunal which cannot be deemed to be "court". Shri Vinod Swarup lastly placed reliance on Davisaliai v. Govindrao A. 1. R. 1965 M. P. 275 where it has been laid down that even though there is no rule of limitation in respect of an application under Order 22 rule 10 C. P. C., if the applicant has been guilty of unreasonable delay his application should not be allowed unless delay is satisfactorily explained. In fairness, learned counsel also brought to my notice Gopalakrishna Naidu v. State A. I. R. 1971 Mad. 463 ' Beeravu v. Kathiymma A. I. R. 1973 Ker. 226 which have discussed the question whether there is a period of limitation for an application under section 151 C. P. C. and the said courts have taken the view contrary to the one which was laid down in the aforesaid Full Bench decision of this Court reported in 1972 All. 504 (supra). Learned senior counsel for the applicant, Shri Rajeshwari Prasad, contended that there was a long catena of case law which has consistently taken the view that an application under Order 22 rule 10 C. P. C. is not governed by any rule of limitation and, therefore, Article 137 would not be applicable. He has placed before me Chitaley's Commentary on Civil Procedure Code, 8th Edn. 1972, Vol. Ill page 837, Note 22 where it has been laid down as under: "The right to make an application under this rule is a right which accrues from day to-day. There is, therefore, no limitation for the applications which can be made at any time."
(3.) THE cases relied on are as follows: 1. Baijnathv. Mt. Tunkowati, A. I. R. 1962 Pat. 285. 2. Davisaliai v. Govindrao, A. 1. R. 1965 M. P. 275. 3. Xoshan Lal v. Kapur Chand, A. 1. R. 1960 Punj. 382. 4. Basistha Narayan v. Sankar Dayal, A. 1. R. 1952 Pat. 323. 5. Binga Sarkar v. Raghbir Singh, A. 1. R. 1951 Punj. (Simla) 297. 6. Bajrang Baliadur Singh v. Rameshwar Baksh Singh, 1950 A. W. R. 563. 7. Navillev. Frasar, A. I. R. 1944 Nag. 137. 8. Surendra Keshuy Roy v. Khetro Kreshto Mittar, 1903 30 Cal. 609. 9. Raini Kanta v. Jyoti Prasad Singh, A. I. R. 1924 Cal. 90 10. Tularam v. Tukalam, A. I. R. 1921 Nag. 32 and 11. Mst. Lakspati v. Daulat Singh, A. I. R. 1927 Oudh 156. ;