Civil Appeal No 3952 of 1983 Appeal by Special leave from the Judgment and order dated the 6th October 1982 of the Allahabad High Court in Civil Misc
Writ Petition No 7029 of 1981
AK Sen and Pramod Swarup for the Appellants
OP Malhotra and Mrs SDikshit for Respondent No2
The Judgment of the Court was delivered by RANGANATH MISRA J
This appeal by special leave seeks to assail the decision of the Allahabad High Court in a proceeding under Article 226 of the Constitution refusing to quash an order of the IIIrd Additional District Judge Kanpur holding that Ceiling Appeal No 189 of 1976 under the UP Imposition of Ceiling on Land Holdings Act 1960 had abated for non substitution of the sole appellant s legal representatives
The ceiling appeal in question had been carried by one Rameshwar and during its pendency the sole appellant died on January 9 1980
Balram Ram Bahadur and Jugal Kishore who are the three sons of Rameshwar moved the appellate Court for substitution of their names as legal representatives in place of Rameshwar 736 On October 25 1980
They applied for setting aside of abatement and condonation of delay
The Additional Distt
Judge took the view that there was no sufficient cause for condonation of delay and good reasons had not been shown for vacating abatement
Accordingly the appeal was dismissed
An application under article 226 was made before the Allahabad High Court for quashing of the appellate order
It was contended that there was no period of limitation prescribed in respect of proceedings under the UP Imposition of Ceiling on Land Holdings Act 1960  Act  for short for applying for substitution nor was there any period prescribed in Rule 3 of Order XXII of the Code of Civil Procedure  Code  for short which became applicable in view of section 38 of the Act
Therefore on the expiry of 90 days from the date of death of Rameshwar no abatement set in and the application for substitution made on October 25 1980 could not have been rejected as being barred by limitation
The High Court referred to section 38 1 of the Act and to Rules 3 9 and 11 of Order XXII of the Code and held that Article 120 of the First Schedule of the  was applicable and the petition for substitution should have been filed within 90 days from the date of death
The writ application was therefore dismissed
The decision of the Allahabad High Court is assailed before this Court
When on the special leave petition notice was given it was indicated that the case would be disposed of on merits
The respondents have however not appeared to contest
Mr Sen appearing in support of the appeal says that section 38 1 of the Act makes it clear that the procedure in the Code has been made applicable for hearing and disposal of appeals
Under section 42 of the Act sections 4 5 and 12 of the  have been made applicable to proceedings including appeals under the Act
According to Mr Sen in view of the provisions in sections 38 and 42 of the Act the appellate authority and the High Court should have accepted the contention of the appellants that the Code was applied only for the disposal of appeals and the provisions of the excepting sections 4 5 and 12 were not applicable to proceedings under the Act
Section 38 1 of the Act provides In hearing and deciding an appeal under this Act the appellate court shall have all the powers and the privileges of a civil court and follow the procedure for the 737 hearing and disposal of appeals laid down in the Code of Civil Procedure 1908
Under the Code when death occurs at an appellate stage substitution is effected in accordance with the procedure laid down in Order XXII
In terms of sub section
1 of section 38 of the Act if death occurred of one of the parties at the appellate stage of a Ceiling Appeal substitution had also to be made according to the procedure laid down in Order XXII of the Code
Rule 3 of order XXII of the Code provides 1 where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiffs alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives the Court on an application made in that behalf shall cause the legal representatives of the deceased plaintiff to be made a party and shall proceed with the suit
Rule 11 of order XXII of the Code indicates that the provisions of that Order do apply to appeals
There is another aspect which militates against Mr Sen s argument
Sub rule 2 of rule 3 of that order provides where within the time limited by law no application is made under sub rule 1 the suit shall abate so far as the deceased plaintiff is concerned and on the application of the defendant the Court may award to him the costs which he may have incurred in defending the suit to be recovered from the estate of the deceased plaintiffEmphasis is added by us by underlining the words in the provision
Obviously time has been limited by law in Article 120 of the First Schedule of the to which we shall presently refer
Article 120 of First Schedule of the provides that an application under the Code to have the legal representatives of the deceased appellant made a party has to be made within 90 days from the date of death of the appellant and Article 121 provides 60 days  period for the application for an order to set aside abatement from the date of abatement
It is not disputed that the application for substitution of the legal representatives of Rameshwar when made was beyond 150 days from the date of his death
If the Code and the applied at the time when the application for substitution was made the legal representatives had to ask for substitution setting aside of abatement and condonation of delay in terms of rule 9 3 of order XXII of the Code
Whether there was sufficient cause for the delay to be condoned and for abatement 738 to be vacated were matters for the appellate court and Mr Sen has rightly not canvassed before us that discretion which vested in the appellate court had not been properly exercised
The sole ground pressed before us as we have already stated is as to whether to an appeal under the Act the provisions of the Code and the referred to above would apply
There is little room to dispute that if Order XXII of the Code applies necessarily Articles 120 and 121 of the First Schedule of the would also apply
The contention that only three sections of the have been specially extended to proceedings under the Act by section 42 thereof is of no consequence once it is held that order XXII of the Code is applicable to appeals under the Act
Section 38 1 of the Act in our view clearly extends the procedure applicable to appeals under the Code to appeals under the Act
The extension of the procedure available under the Code to appeals under the Act attracts the entire procedure of the Code relevant for the purpose of disposing of an appeal under the Act
There is no scope to reckon an exception unless the statute indicates any
We are therefore not inclined to accept the submission advanced before us by Mr Sen that the principles of abatement and delay were not applicable to the case in question and the appellate judge as also the High Court had gone wrong in applying the provisions of the Code and the to deal with the application for substitution
The appeal fails and is dismissed without any direction for costs
PBR Appeal dismissed


Summary:
During the pendency of the ceiling appeal under the UP Imposition of Ceiling on Land Holdings Act 1960 the sole appellant died on January 9 1980 On October 25 1980 his three sons applied for setting aside of abatement and condonation of delay and for substitution of their names as legal representatives of their deceased father
The Additional District Judge dismissed the appeal on the view that there was no sufficient cause for condonation of delay and for vacating the abatement
The High Court dismissed the appellants  Writ Petition holding that Article 120 of the First Schedule of the was applicable and that therefore the petition for substitution should have been filed within 90 days from the date of death
In appeal to this Court it was contended that in view of the provisions of sections 38 and 42 of Act the Code of Civil Procedure 1908 applied only for the disposal of appeals and the provisions of the  excepting sections 4 5 and 12 were not applicable to proceedings under the Act
Dismissing the appeal
 HELD Section 381 of the Act clearly extends the procedure applicable to appeals under the Code to appeals under the Act
The extension of the procedure available under the Code to appeals under the Act attracts the entire procedure of the Code relevant for the purpose of disposing of an appeal under the Act
There is no substance in the contention that the principles of abatement and delay were not applicable to the instant case
738 C D Under the Code
when death occurs at an appellate stage substitution is effected in accordance with the procedure laid down in Order XXII
In terms of section 341 of the Act if death occurred of one of the parties at the appellate stage of a ceiling appeal substitution had also to be made according to the procedure laid down in O XXII of the Code
Rule 11 of Order XXII indicates that the provisions of the Code do apply to appeals
737 B 735 Again under Rule 32 of Order XXII if no application is made under sub rule 1 within the time limited by law the suit shall abate
Time has been limited by law in Article 120 of the First Schedule of the which provides that an application under the Code to have the legal representatives of the deceased appellant made a party has to be within 90 days from the date of death of the appellant and Article 121 provides 60 days period for the application for an order to set aside abatement from the date of abatement737 E G If the Code and the applied at the time when the application for substitution was made the legal representatives had to ask for substitution setting aside of abatement and condonation of delay in term of rule 93 of Order XXII of the Code
There is little room to dispute that if order XXII of the Code applies necessarily Articles 120 and 121 of the First Schedule of the would also apply
737 A In the instant case the application for substitution of the legal representatives of the deceased appellant when made was beyond 150 days from the date of his death and the High Court had rightly rejected the appellants  application