Civil Miscellaneous Petition Nos
2402 of 1964
Applications for substitution for condonation of delay
AND Civil Appeal No 430 of 1963
Appeal by special leave from the judgment and decree dated April 8 1959 of the Bombay High Court in First Appeal No 666 of 1954
SG Patwardhan and AG Ratnaparkhi for the appellant
Naunit Lal for the respondents
ORDER Subba Rao J These are two applications one for the substitution of the legal representatives of respondent No 7 in Civil Appeal No 430 of 1963 on the file of this Court and the other for the condonation of delay in filing the first application
The first question is whether there is sufficient ground for excusing the delay in filing the application for bringing the legal representatives of the 7th respondent on record
The facts are as follows Sakharam Maruti Jedhe and others filed Special Suit 10 of 1964 in the Court of the Civil Judge Senior Division Poona against Rangubai Kom Shanker Jagtap for possession of the plaint schedule property and for mesne profits and obtained a decree therein
Against the said decree defendant preferred an appeal to the High Court of Bombay
The High Court by its judgment dated April 8 1959 dismissed the appeal
The defendant filed an application for special leave to prefer an appeal to this Court and the same was granted on June 16 1959
The appeal was admitted on July 27 1961
Between these two dates on November 12 1959 the 7th respondent Keshavarao Marutirao Jedhe died
Thereafter
on March 7 1964 the defendant filed Civil Application No 1118 of 1964 in the High Court of Bombay for bringing on record the legal representatives of the 7th respondent and for necessary certificate to that effect
On August 11 1964 a Division Bench of the High Court granted the certificate
On February 19 1964 the defendant filed in this Court Civil Miscellaneous Petition No 2401 of 1964 for bringing on record the legal representatives of the 7th respondent and on October 8 1964 filed Civil Miscellaneous Petition No 2402 of 1964 for condoning the delay of 4 years and 19 days in filing the aforesaid first petition
In the said petition the petitioner gave two reasons for condoning the delay
namely i the petitioner is a poor widow living in Poona with her daughters and there is no male member in the family of the petitioner to look after the proceedings and ii after the preliminary decree in the proceedings for the determination of the mesne profits the plaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record within the time prescribed and 213 as the legal representatives were brought on record at one stage of the suit no question of abatement would arise in respect of the appeal
The respondents filed a counter affidavit pointing out that there were no grounds for excusing the inordinate delay that the appellant had been conducting this long drawn litigation from the year 1946 that she had a son in law who was helping her that the deceased was a prominent man of Poona whose death was published in all the newspapers and that the appellant was living in the same locality and she must have had knowledge of his death soon after it occurred
It was further pleaded that the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings could not in law prevent the abatement of the appeal if they were not brought on record in the appeal in time
Under OXVI r 14 of the Supreme Court Rules 1950 an application to bring on record the legal representatives of a deceased appellant or respondent shall be made within 90 days of the death of the said appellant or respondent
Under the proviso thereto
in computing the said period the time taken in obtaining a certificate from the High Court shall be excluded
Even if the said time is excluded there will be a delay of about 312 years in filing the application to bring the legal representatives of the deceased 7th respondent on record
From the counter affidavit filed by the respondents it is clear that the 7th respondent was a prominent citizen of Poona and the fact of his death was published in all newspapers and the petitioner resides very near the place where the 7th respondent was living
She has been conducting this litigation from the year 1946 and was in cop tact with her Advocates from time to time in connection with the appeal
She has also a son in law who is helping her in the litigation
She had also the knowledge of the fact that the legal representatives of the 7th respondent were brought on record in the final decree proceedings
In the circumstances the fact that she is an illiterate woman cannot possibly be a ground for excusing this inordinate delay in bringing the legal representatives of the 7th respondent on record in the appeal
therefore hold that there is no sufficient ground for excusing the delay in bringing the legal representatives of the 7th respondent on record
The next question raised is an interesting one of law
From the aforesaid narration of facts it will be seen that the legal representatives of the 7th respondent were brought on record within the prescribed time in the final decree proceedings
The question is whether it would enure for the benefit of the appeal that is to say whether by reason of that fact there is no abatement of the appeal
The relevant provisions of the Supreme Court Rules 1950 reads thus We have already given the gist of OXVI r 14 of the said Rules
Rule 14 A thereof reads 214 The provisions of Order XXII of the Code relating to abatement and of Article 171 in the First Schedule to the Indian Limitation Act
1908 IX of 1908 shall so far as may be applicable apply to appeals and proceedings under rule 12 and rule 13 in the High Court and in the Supreme Court
 Rule 14 A by reference incorporates the rules of abatement in the Code of Civil Procedure and also article 171 in the First Schedule to the Indian Limitation Act in the Supreme Court Rules
Under OXXII rr 3 and 4 of the Code of Civil Procedure if the plaintiff or the defendant dies and the right to sue does not survive to the surviving plaintiff or against the surviving defendant as the case may be his legal representatives shall be brought on record within the prescribed time and where within the time limited by law no application is made the suit shall abate so far as the deceased plaintiff is concerned or against the deceased defendant as the case may be
Under r 11 thereof
in the application of this Order to appeals so far as may be the word plaintiff shall be held to include the appellant
the word defendant a respondent and the word suit an appeal
The result is that for the purpose of abatement a suit and an appeal are treated as different proceedings and the suit or the appeal as the case may be abates if the legal representatives of the deceased plaintiff or defendant are not brought on record within the time prescribed
Under article 171 of the First Schedule to the Limitation Act an application to set aside an order of abatement shall be made within 60 days from the date of abatement
The result of these provisions is that if an application to bring on record the legal representatives of a respondent is not made within 90 days from the date of death of the said respondent the appeal abates but an application to set aside that abatement can be made within 60 days from the date of abatement
But if by reason of the fact that the legal representatives of the deceased 7th respondent were brought on record in the final decree proceedings there was no abatement this Court no doubt will exercise its discretion liberally in condoning the delay in not formally getting the legal representatives of a deceased party recorded in appeal in time
The main contention therefore is that by reason of the fact that they were brought on record in the final decree proceedings there was no abatement of the appeal
It is said that the final decree proceeding is a stage in the suit and the appeal is another stage in the suit and therefore the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit including the appeal
This conclusion the argument proceeds flows from the reasoning of the judgment of the Judicial Committee in Brij Inder Singh vs Kanshi Ram1
The relevant facts of that case were these Pending a suit an application was made for directing a party to produce 1 1917 LR 44 IA 218 228 215 certain books and that was ordered by the District Judge
Thereafter an application was made to the Chief Court to revise the order of the District Judge
Pending the revision the plaintiff and the 2nd defendant died
Within the prescribed time their legal representatives were brought on record in the revision
Subsequently that revision was dismissed as withdrawn
The legal representatives of the plaintiff and the 2nd defendant were not brought on record in the suit within the time prescribed
The question was whether the suit had abated
The Judicial Committee held that the suit did not abate and the following reasons were given for that view The plaintiff as representative of the original plaintiff and the defendant s representatives of Joti Lal had been introduced in the Chief Court
No doubt that was only done in the course of an interlocutory application as to the production of books
But the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages and the prayer which seems to have been made ab majorem cautelam by the plaintiff in his application to the District Judge Prenter under section 365 was superfluous and of no effect
Coates the judgment debtor was only formally called and the nonpresence of his representatives would afford no ground for the abatement of the suit
 This judgment is an authority for the position that if the legal representatives of a deceased plaintiff or defendant are brought on record in an appeal or revision from an order made in the suit
that would enure for all subsequent stages of the suit
The same principle was sought to be extended in a Madras decision to a cross appeal see Shankaranaraina Saralaya v Laxmi Hengsu1
There two appeals were independently filed against the decree in a suit one was flied by the plaintiff and the other by the defendant
The plaintiff appellant died and in the appeal filed by him his legal representatives were brought on record in time whereas it was not so done in the appeal filed by the defendant respondent
It was argued that by reason of the fact that the legal representatives of the plaintiff were brought on record in the appeal filed by him there was no abatement in the appeal filed by the defendant
The Court negatived the contention and when the aforesaid decision of the Privy Council was cited it was distinguished on the following grounds Their Lordships have held that the introduction of a plaintiff or a defendant for one stage of a suit is an introduction for all stages
When the subject matter of the interlocutory application was pending in the appellate Court it was deemed to be one stage of the suit and therefore there was no need to put in a fresh application at a further stage of the suit when it came on for trial before the first Court
Can it be said in the present case that t AIR 1931 Mad 277 278 216 what was done in one appeal could enure for the benefit of another appeal unless the latter appeal can be deemed to be a continuation or a further stage of the appeal in which the legal representatives were brought on record I am constrained to say that it is difficult to extend the principle of the decision of the Privy Council to the facts of this case
 This decision accepts the principle laid down by the Privy Council but distinguishes the case before it on the ground that the interlocutory appeal is not a continuation or a further stage of the appeal in which the legal representatives were brought on record
Many other decisions were cited at the Bar but they only support the position that in bringing the legal representatives of a deceased party on record in one appeal will not enure for the benefit of a cross appeal
Let us now consider the question on principle
A combined reading of Order XXII rr 3 4 and 11 of the Code of Civil Procedure shows that the doctrine of abatement applies equally to a suit as well as to an appeal
In the application of the said rr 3 and 4 to an appeal instead of plaintiff and defendant appellant and respondent have to be read in those rules
Prima facie
therefore if a respondent dies and his legal representatives are not brought on record within the prescribed time the appeal abates as against the respondent under r4 read with r11 of OXXII of the Code of Civil Procedure
But there is another principle recognized by the Judicial Committee in the aforesaid decision which softens the rigour of this rule
The said principle is that if the legal representatives are brought on record within the prescribed time at one stage of the suit it will enure for the benefit of all the subsequent stages of the suit
The application of this principle to different situations will help to answer the problem presented in the present case
1 A flied a suit against B for the recovery of possession and mesne profits
After the issues were framed
B died
At the stage of an interlocutory application for production of documents the legal representatives of B were brought on record within the time prescribed
The order bringing them on record would enure for the benefit of the entire suit
2 The suit was decreed and an appeal was filed in the High Court and was pending therein
The defendant died and his legal representatives were brought on record
The suit was subsequently remanded to the trial Court
The order bringing the legal representatives on record in the appeal would enure for the further stages of the suit
3 An appeal was flied against an interlocutory order made in a suit
Pending the appeal the defendant died and his legal representatives were brought on record
The appeal was dismissed
The appeal being a continuation or a stage of the suit
the order bringing the legal representatives on record would enure for the subsequent stages of the suit
This would be so whether in the appeal the trial Court s 217 order was confirmed modified or reversed
In the above 3 illustrations one fact is common namely the order bringing on record the legal representatives was made at one stage of the suit
be it in the suit or in an appeal against the interlocutory order or final order made in the suit for an appeal is only a continuation of the suit
Whether the appellate order confirms that of the first Court modifies or reverses it replaces or substitutes the order appealed against
It takes its place in the suit and becomes a part of it
It is as it were the suit was brought to the appellate Court at one stage anti the orders made therein were made in the suit itself
Therefore that order inures for the subsequent stages of the suit
But the same legal position cannot be invoked in the reverse or converse situation
A suit is not a continuation of an appeal
An order made in a suit subsequent to the filing of an appeal at an earlier stage will move forward with the subsequent stages of the suit or appeals taken therefrom but it cannot be projected backwards into the appeal that has already been filed
It cannot possibly become an order in the appeal
Therefore the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree
We therefore hold that the appeal abated so far as the 7th respondent was concerned
In the result the petitions are dismissed
Petitions dismissed


Summary:
The respondents filed a suit against the petitioner in 1954 for the possession of certain property and for mesne profits and obtained decree in their favour
The petitioner s appeal to the High Court was dismissed in April 1959 and a petition for special leave to appeal to this Court was granted in June 1959
Thereafter the 7th respondent died in November 1959
The petitioner filed the present applications in October 1964 for bringing on record the legal representatives of the 7th respondent and for condonation of delay on various grounds
It was also contended on behalf of the petitioner that in view of the fact that after the preliminary decree for mesne profits had been passed the respondentsplaintiffs brought the heirs and legal representatives of the deceased 7th respondent on record in the final decree proceedings within the time prescribed and as the legal representatives were brought on record at one stage of the suit on the basis of the rule laid down by the Privy Council in Brij Inder Singh vs Kanshi Ram 44 IA 218 no question of abatement would arise in respect of the appeal that the final decree proceedings are a stage in the suit and the appeal is another stage in the suit and therefore the bringing on record of the legal representatives in one stage of the suit will enure for all stages of the suit
HELD i On the facts of the case there were no sufficient grounds for condoning the delay in bringing the legal representatives of the 7th respondent on the record
ii The order bringing the legal representatives of the respondent on record in the final decree proceedings cannot enure for the benefit of the appeal filed against the preliminary decree
The appeal therefore abated so far as the 7th respondent was concerned
217D An order bringing the legal representatives of a deceased party on the record passed at the stage of an interlocutory application in a suit or passed while an appeal is pending where the suit is subsequently remanded to the trial court or if passed while an appeal is pending against an interlocutory order in passed while an appeal the subsequent stages of the suit  in all that suit would enure for made at one stage of the suit be it the suit these
cases the order is final appeal against the interlocutory order or final order in the suit for here the appeal is only a continuation of the suit
But the same legal position cannot be invoked where an order is made in a suit subsequent to the filing of an appeal at an earlier stage
Such an order cannot be Projectedbackwards into the appeal that has already been filed so as to become an order in that appeal 216F 217D Brij Inder Singh vs Kanshi Ram 44 IA 218 distinguished
Shankarnaraina Saralaya vs Laxmi Hengsu AIR 1931 referred to
N3SCI 1 212