Case: Balram and Others Vs. IIIrd Additional District Judge and Another

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 s. 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 s. 38 (1) of the Act and to Rules 3, 9 and 11 of Order XXI I of the Code and held that Article 120 of the First Schedule of the Limitation Act, 1963, 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. 3. Mr. Sen appearing in support of the appeal says that s. 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 s. 42 of the Act, sections 4, 5 and 12 of the Limitation A ct, 1963, have been made applicable to proceedings including appeals under the Act. According to Mr. Sen, in view of the provisions in ss. 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 Limitation Act excepting ss. 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 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-s. (1) of s. 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. Sens 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 plaintiff. (Emphasis 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 Limitation Act to which we shall presently refer. 4. Article 120 of First Schedule of the Limitation Act 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 Limitation Act 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 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 Limitation Act 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 t he First Schedule of the Limitation Act would also apply. The contention that only three sections of the Limitation Act have been specially extended to proceedings under the Act by s. 42 thereof is of no consequence once it is held that order XXII o f 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.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]Article 120 of First Schedule of the Limitation Act 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 Limitation Act 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 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 Limitation Act 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 t he First Schedule of the Limitation Act would also apply. The contention that only three sections of the Limitation Act have been specially extended to proceedings under the Act by s. 42 thereof is of no consequence once it is held that order XXII o f 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 Limitation Act to deal with the application for substitution.