Banerjee, J. - (1.) Against an appellate decree by the Additional District Judge, Fourth Court, at Alipore, District 24 Parganas, the petitioner, State of West Bengal, filed a Second Appeal to this Court, on November 17, 1958. The sole respondent in the appeal was one S. K. Maity alias Sachindra Kumar Maity, who was, as it now transpires, dead at the filing of the appeal. The appeal was admitted by this Court, on September 24, 1959, under Order XLI Rule 11 of the Code of Civil Procedure. A process server, who went to serve the notice of the appeal on the respondent, found out that the respondent had the sometime ago and returned the notice unserved with a report to the above effect Thereafter, on May 19, 1960, the case was placed before the Registrar of the Appellate Side of this Court, taking Lawazimah matters, for further action on the report of the process server. It is alleged, that the Advocate for the appellant State came to know, for the first on that date that the sole respondent was dead. Since the process server's report did not contain any information either about the date of the death or about the heirs or legal representatives of the respondent, the learned Advocate had to forward the information to the Superintendent and Legal Remembrancer, West Bengal, who looks after cases pending in the High Court, in which the State Government is a Party, for necessary instructions. It is further alleged, that the Legal Remembrancer, in his turn, forwarded the information, on May 24, 1960, to an Additional District Magistrate of 24 Paraganas for ascertaining the date of the death of the respondent and the names of his heirs or legal representatives. The Additional District Magistrate deputed the District Kanungo to enquire into matter. The District Kanungo, thereafter, contacted the opposite party No. 2, one of the heirs of the deceased respondent, and ascertained as follows:-- (a) that the respondent died intestate on October 26, 1958. (b) that the respondent left him surviving as his heirs and legal representatives, (i) his widow. Sm. Monisha Malty, (ii) his sons, 1. Shyamal Maity. 2. Sajal Maity. 3. Kajal Malty. 4. Ujjal Malty, minor. 5. Utpal Maity, minor. (iii) his daughters, 1. Sulagna Maity, 2. Sudakshina Maity, 3. Swapana Maity. (c) that the minor sons of the deceased were living under the guardianship of their mother, who was a fit and proper person to he appointed their guardian in the Second Appeal. The District Kanungo incorporated the above information in his report, dated June 8, 1960, and submitted the same before the Additional District. Magistrate. When the above report reached the learned Advocate for the State, he filed an application, on June 15, 1960, praying, (a) that the abatement of the appeal he set aside (b) that the heirs of the deceased respondent be substituted in his place, or (c) that they be added as parties respondents and be brought on the record. On the above application, there was a Rule Nisi issued, on June 27, 1960, on the following terms:-- "Let a Rule issue calling upon the heirs and legal representatives of the deceased sole respondent, as mentioned in the petition, to show cause why abatement of this appeal consequent upon the death of the deceased sole respondent should not be set aside and the aforesaid heirs substituted in his place and stead or such other or further order made as to this Court may seem fit and proper." The respondents to the Rule opposed the Rule. They filed an affidavit-in-opposition, in which it was, inter alia, denied that the State Government came to know the death of the sole respondent in the appeal only on May 19, 1960, as alleged. It was further stated in paragraph 5 of the affidavit as follows: "That after the death of S.K. Maity. the present opposite parties gave notice to the petitioner represented by the Collector 24 Parganas, through Court, on 11-7-59. That the said notice was served by the Court on the Collector on 22-7-59. That, thereafter, the present opposite parties as heirs of S. K. Maity started execution of the decree in the Fourth Court of the Subordinate Judge Alipore, in Title Execution Case No. 10 of 1960, on 14-3-60. The petitioner took several adjournments in the said case and at last deposed the decretal dues in Court on 27-10-60. That all the notices as well us the petition of the Execution Case were given in the name of the present opposite party and therefore, the petitioner was aware of the death of S.K. Maity since July 1959.'' The respondents look up the stand that the appeal having had been preferred against a dead person, the application for setting aside abatement of the appeal and for bringing the heirs of the deceased respondent on record was not maintainable
(2.) When the Rule came up for hearing before Bachawat and A. C. Sen JJ. on April 2, 1963 the petitioner State Government grew wiser about the legal position and asked for an adjournment Thereafter, on April 8, 1963, the State Government filed in application under Section 5 of the Limitation Act, in the alternative, to the petition on which Rule was issued, therein repeating the circumstances, hereinbefore stated, under which the appeal came to he filed against a dead person and stating as follows. "That in the facts and circumstances stated above your petitioner has been advised that it is necessary to make this petition in the alternative praying that the Cause Title of the Memorandum of Appeal of the said S.A. No. 373 of 1959 be amended by bringing on record the above named opposite parties in the place of the said deceased S. K. Maity as respondents in the said appeal and praying further that the said Memorandum of Appeal as so amended be treated as being filed against the abovenamed opposite parties who are the legal representatives of the said deceased S. K. Maity by condoning, under Section 5 of the Indian Limitation Act, the delay in filing the same." The prayers made in the application were, inter alia, as follows: (i) that the said Memorandum of Appeal in the said S.A. No. 573 of 1959 be amended by bringing on the record the abovenamed legal representatives in the place of the deceased S. K. Maity as respondents in the appeal. (ii) that the said Memorandum of Appeal as amended he treated as filed against the said legal representatives as respondents after condoning the delay in filing the appeal, (iii) that the said Memorandum of Appeal as so amended be treated as having been heard under Order XLI Rule 11 of the Code of Civil Procedure. Bachawat and A. C. Sen, JJ. directed that the said application be heard as a contested application. The respondents filed an affidavit-in-opposition to the contested application, therein taking up the stand that the application was not maintainable in taw, that there cannot be an amendment of the Memorandum of Appeal in the manner prayed for and that in any event the delay was not sufficiently explained. To the affidavit-in-opposition, there was an affidavit-in-reply to which reference will hereinafter be made.
(3.) The Civil Rule and the contested application have both been placed before us for hearing.;