G. CHRISTHUDAS AND ANR.

A v.

ANBIAH (DEAD) AND ORS.

FEBRUARY 19, 2003

[S. RAJENDRA BABU AND ASHOK BHAN, JJ.] B

Code of Civil Procedure, 1908-Section 151, Order XU-Limitation Act, lfJ6J~Attlcles 122 and 137-Suit-Dismissal of-Appeal-Death of appeliants-Applicatlons for bringing legal representatives on record in respect C of appellant who did not join the appeal held barred by /imitation-However It was filed within limitation period from the date of death of last surviving appellant-Appeal dismissed for non-prosecution holding that party not diligent in prosecuting the appeal-On appeal, held-Applications not barred by limitation-Dismissal for non-prosecution can be only under Section 151 and not under Order XLI-Jf an appeal is dismissed uls 151 it will not fall within D the scope of Article 122 but under Article 13 7 ..

After dismissal of their suit, plaintiffs 1,3 and 5 preferred appeal; plaintiff 4 did not join them. During pendency of the appeal, all the appellants died. Legal heirs of appellant 4 filed application for bringing them on record, but the same was dismissed as barred by limitation. Their E application for condonation of delay in filing the application and application for setting aside the abatement were also dismissed on the ground that they deliberately did not take steps to continue. the appeal.

The appeal was dismissed for non-prosecution. Thereafter, application of present appellants for restoration of appeal and application to implead F them as legal representatives were also dismissed: Hence the present appeals.

Allowing the appeals, the Court

HELD: 1. The observation of the High Court that the application to G • bring the appellants on record was barred by time and there was no scope to review the order made earlier in the appeal is not correct. (251-8)

2. High Court set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on

247 H

SUPREME COURT REPORTS

[2003) 2 S.C.R.

A the death of any one of the plaintiffs or the appellants; that only Article 137 of the Limitation Act is applicable and within the period set out therein an application for impladment could be made inasmuch as no particular provision is made therein as to the period within which such application can be filed. If the time is reckoned from the time the last surviving B appellant died, the application filed by legal representatives of appellant No.4 was within time and, therefore, the Division Bench could not have held that the party concerned is not diligent in prosecuting the appeal even on the statement of law made by the High Court. (250-C-E)

Charan Singh v. Darshan Singh, AIR (1975) SC 371, relied on.

Ramaswamy v. Collector of Dindigul, (1990) 11 MLJ 562, referred to.

3. The dismissal for non-prosecution of the appeal by persons interested in the matter could only be under Section 151 CPC and not under any other provision of Order XLI CPC. If an appeal is dismissed D under Section 151 CPC, Article 122 of the Limitation Act would have no application because when a court makes an order under Section 151 CPC it is implicit that such a court has the power to e.ntertain an application to set aside its order made under Section 151 CPC. The power exercised under Section 151 CPC is ex debito justitiae. An application invoking the inherent power of the Court under Section 151 CPC is not one which a E party is required to make under any provision of the CPC for setting in motion the machinery of the court. Thus Article 122 of the Limitation Act has no application to such an application. (250-F-G)

4. An application for restoration of the appeal would be not by a party to the proceedings and will not fall within the scope of Article 122 but under F Article 137 of the Limitation Act. The application for setting aside the rder

of dismlssnl of appeal and for impleadment is filed within three years from the date of order of dismissal for non-prosecution and is thus within time.

(250-H; 251-A-B)

G CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3292 of 1993.

From the Judgment and Order dated 3.7.1996 of the Chennai High Court in Crl. S.A. Nos. 592 to 594 of 1996.

WITH H C.A. No's. 3293-94/1993, 1418-1420/2003 and 1422-1424/2003.

K.S. Sukumaran, T.L. Vishwanath Iyer, S. Balakrishnan, Dr. A Fancis A Julian, Sumit Kumar, Ms. Kartika Sukumaran, K. Ram Kumar, Subramonium Prasad. M.K.D. Namboodry, Abhay Kumar, R. Gopal Krishnan and Ms.

Aruna Mathur for the appearing parties.

The Judgment of the Court was delivered by

RAJENDRA BABU, J. A Suit in O.S No.I of 1960 was filed under Order 1 of Rule 8 of the Code of Civil Procedure for a declaration in respect of 456 London Mission Churches and its properties as belonging to London Mission Christians and for injunction and in respect of certain other properties

for recovery of possession. During the pendency of the suit, Plaintiff No.2 C died. The suit was dismissed on 1.4.1967 on the ground that it was not maintainable as plaintiffs had not obtained the consent of the Advocate General under Section 92 of the Code of Civil Procedure to prosecute the suit. However, on merits, it was held that there was a valid merger of London Mission Society Churches with the SIUC and thereafter SIUC Churches with CSL

Against the said decision in the said suit, an appeal was preferred by plaintiffs Nos. l, 3 and S. Plaintiff No. 4 did not join as an appellant. He was impleaded as one of the respondents. During pendency of the appeal, all the appellants died. Two persons, Anbiah & Dharmakhan, filed an application

for bringing them as LRs of appellant No.4 in CMP No. 13928 to 13931/ E 1974 on 13.3.1974. They also filed another application to set aide the abatement and to condone the delay in seeking to set aside the abatement.

These applications were dismissed on the ground that the applicants dii:I not deliberately take steps to continue the appeal; that no sufficient reasons have been shown for condoning the delay anCI that the only reason given appeared to be incorrect and, thus, the appeal was dismissed for non-prosecution by an F order made on 10.12.1975. At that stage CMP No.3180/84 was filed under Order 1 Rule 8 CPC by the present appellants to set aside the order dted

10.12.1975 for restoration of the appeal and to implead them as representing the members of the LMS Churches and LM Christians on 12.12.1978. It was accompanied by an application CMP No.10931of1979 filed on 9.10.1979 under Section 5 of the Limitation Act to condone the delay in filing the CMP G No.13928 to 13931 of 1974. The Division Bench of the High Court by an order made on 30.4.1991 dismissed the said application. It was noticed in the course of the order (I) that there are no bona fides in the application as the applicants were aware of the dismissal of the appeal long before making the application; (ii) that the appeal having been dismissed on the ground of non- H

250 SUPREME COURT REPO,!lTS

[2003] 2 S.C.R.

A prosecution and no steps having been taken to set aside the order within time, the application is b11.rred by limitation (iii) that the application to bring on record as LRs also stood barred by limitation (iv) that the Petitioners were aware of the dismissal of the appeal in view of the proceedings pending in other. courts but have come to the Court with incorrect statement of fact and, B therefore, no reason for any relief to be given to them. These appeals are filed against the aforesaid order.

Fact remains that an application had been filed before the Court on 13.3.1974 by Anbiah & Dharmakhan in the said appeal. The High Court after adverting to the decision of this Court in Charan Singh v. Darshan Singh, C AIR (1975) SC 371, and Ramaswamy v. Collector of Dindigul, (1990) II MLJ 562, set out the law correctly to the effect that if a suit had been filed in a representative capacity, there can be no abatement on the death of any one of the plaintiffs or the appellants; that only Article 137 of the Limitation Act is applicable and within the period set out therein an application-for impleadment could be made inasmuch as no particular provision is made D therein as to the period within which such application can be filed. If we reckon the time from the time the last surviving appellant died that is from 7.10.1973, the application filed by Anbiah & Dharmakhan was within time and, therefore, the Division Bench could not have passed the order made on

10.12.1975 that the party concerned is not diligent in prosecuting the appear E even on the statement of law made by the High Court.

We may notice that appellant No.4 died on 25.10.1970, appellant No.3 died on 1.12.1971 and appellant No.I died on 7.10.1973. The appeal was ordered to be dismissed on the ground that the persons interested to prosecute the appeal had not moved within time. The dismissal for non-prosecution of F the appeal by persons interested in the matter could oly be under Section 151 CPC and not under any other provision of Order XLI of CPC. If an appeal is dismissed under Section 151 CPC, Article 122 of the Limitation Act would have no application because when a court makes an order under Section 151 CPC it is implicit that such a court has the power to entertain an application to set aside its order made under Section 151 CPC. The power exercised G under Section 151 CPC is ex debito justitiae. An application invoking the inherent power of the court under Section 151 CPC is not one which a party is required to make under any provisions of the CPC for setti11g in motion the machinery of the court. Thus Article 122 of the Limitation Act has no application to such an application.

H If that be the correct position, an application for restoration of the

I -t

,...

appeal would be not by a party to the proceedings and will not fall within the A scope of. Article 122 but under Article 137 of the Limitation Act. CMP No. 3180/84 was filed on 12.12.1978. Therefore, the application for setting aside the order of dismissal of appeal and for impleadment is filed within three years from the date of order of dismissal for non-prosecution and is thus within time.

In that view of the matter, the observation of the High Court in the course of its order under appeal that the application to come on record is hopelessly barred by time and there was no scope to review the order made earlier in the appeal will not be correct. We set aside the order made by the High Court on 10.12.1975 and the order dated 13.4.1991 and allow the said C CMPs referred t.o above with a direction for the applicants therein to be impleaded as parties in the appeal. Thus, the appeal in A.S. No. 23/I 968 stands restored and remitted to the High Court for disposal in accordance with law.

The Learned Counsel on both sides are agreed that the orders of the D High Court under challenge in Civil Appeal No.3292 .of I 993, Civil Appeals (arising .out ofSLP(C) No.3586-3588/1998) and Civil Appeals (arising .out of

SLP(C).CC 2523-2525/1998), need to be set aside and the matters be remitted to the High Court for fresh consideration in accordance with law. In the Special Leave Petitions leave is granted.

E These appeals stand . allowed accordingly.

K.K.T.

Appeals allowed.