Ved Prakash v. Duli Chand — 1971 DIGILAW 405 (ALL)

JUDGMENT R.S. Pathak, J. - This is an application under Rule 3 of Chapter X of the Rules of Court. 2. Duli Chand filed a suit for specific performance against the applicant. The suit was dismissed. Thereafter, an appeal preferred by Duli Chand was allowed on October, 15, 1968. The applicants filed as second appeal in this Court on January 2. 1969 impleading Duli Chand as respondent. Before this Duli Chand had already died on November 5, 1968, that is after the decree the lower appellate court and before the second appeal was filed. On August 13, 1969, the applicants applied under Rule 4 of Order XXII of the Code of Civil Procedure praying that the name of Duli Chand deceased in the second appeal be deleted and the names of his legal representatives substituted. This was accompanied by an application under Section 5 of the Limitation Act attempting to explain the delay in filing the substitution application. It was averred that the applicants had come to know of the death of Duli Chand on May 16 1969 only and that subsequently one of the applicants, who was also pairokar on behalf of the others, fell ill from typhoid and reached Allahabad only after the first week of August for filing the substitution application. The application under Section 5 of the Limitation Act was dismissed by a learned single Judge on April, 27, 1970 in the opinion that there was no ground for condoning the delay, and accordingly on the same date the substitution application was also dismissed. On May 18, 1970 an order was made on the memorandum of appeal declaring that the appeal had abated. Then on May 22, 1970 the applicants applied under Section 151 of the Code praying for the recall of the order dated April 27, 1970 rejecting the substitution application, for setting aside the abatement and for restoring the appeal to its original number for decision on the merits. On March 2, 1971 the learned single Judge dismissed it as misconceived. Thereafter on the same day the instant application was made before him. It prays for leave to implead the legal representatives of Duli Chand after the removal of his name from the record. On March 2, 1971 the learned single Judge dismissed it as misconceived. Thereafter on the same day the instant application was made before him. It prays for leave to implead the legal representatives of Duli Chand after the removal of his name from the record. It was contended before the learned single Judge that there was no period of limitation prescribed for an application under Rule 3 of the Chapter X of the Rules of Court and, if at all, the residuary provision prescribing three years as the period of limitation would be attracted. Being of opinion that the question was of considerable importance, he has referred the application to a larger Bench.And so the case is now before us. 3. Shri B.D. Tripathi, on behalf of the legal representatives has raised a preliminary objection. It is urged that as the second appeal is not pending any longer the application is misconceived and should be rejected. 4. Shri V.P. Misra, on behalf of the applicants, contends that the order declaring the appeal abated. is a nullity and can be ignored, that abatement arises by the automatic operation of law and that any order of the Court declaring abatement is superfluous. He urges that in law the appeal has not abated and, therefore, the substitution application now made should be considered. Secondly, he contends, even if it be assumed that the order declaring the appeal abated can be considered as all order disposing of the memorandum of appeal, it is merely an administrative order, the judicial proceeding having come to an end by the abatement of the appeal, and an administrative order can always be recalled. Finally, he urges, the Court is competent to recall the order declaring the appeal abated in the exercise of its inherent powers. 5. Now, there can be no doubt that under Rule -4 of Order XXII an appeal abates automatically by operation of law. Sub-rule (3) of Rule 4 declares : "Where within the time limited by law no application is made under sub. rule (1), the suit shall abate as against the deceased defendant." The language is clear. No order of the Court is necessary for effecting an abatement of the appeal. Churva v. Baneshwar, AIR 1926 Allahabad 217 (F.B.), when an appeal abates the memorandum of appeal is placed before the Court. rule (1), the suit shall abate as against the deceased defendant." The language is clear. No order of the Court is necessary for effecting an abatement of the appeal. Churva v. Baneshwar, AIR 1926 Allahabad 217 (F.B.), when an appeal abates the memorandum of appeal is placed before the Court. The memorandum of appeal constitutes a proceeding pending in the Court, and it is necessary for the Court to finally dispose of that proceeding. When it records the order that the appeal has abated what it does in fact is to make an order disposing of the proceeding. An appeal must not be confused with the memorandum of appeal. An appeal is a remedy while the memorandum of appeal is a proceeding giving effect to that remedy. When the appeal abates, the remedy is extinguished. But the proceeding which has been instituted for the purpose of giving expression to that remedy has yet to be disposed of. Its disposal, in the circumstances, may be a mere formality, but nonetheless a necessary and proper formality. Therefore, on May 18, 1970 the proceeding pending in this Court came to an end by virtue of the order made by this Court. We are fortified in this view by what has been observed in Aiyappan v. Kesayaru, A.I.R. 1953 T.C. 545 (F.B.). 6. Learned counsel for the applicants is right in the contention that there could be no abatement of the appeal under Rule 4 of Order XXII of the Code. Duli Chand did not die during the pendency of the second appeal. He was already dead before the second appeal was filed. Rule 4 contemplates the death of a respondent after the appeal has been filed and while it is pending. The application under Rule 4 made by the applicants was misconceived. Banke Bihari Lal v. Mahadeo Prasad, AIR 1953 Allahabad 97. It should have been an application under Rule 3 of Chapter X of the Rules of Court. It is under that provision that an application is contemplated for leave to implead the legal representatives of a deceased respondent, where the respondent dies after the passing of the decree under appeal and before the appeal has been filed. But we are faced with the order of May 18, 1970 which, as we have observed is tantamount to disposing of the appellate proceeding. But we are faced with the order of May 18, 1970 which, as we have observed is tantamount to disposing of the appellate proceeding. Unless that order is recalled, there is no pending appellate proceeding. The order of May 18, 1970 cannot be ignored as nullity. It was an order which this Court was perfectly competent to make. Even though it may have proceeded in error, the Court enjoyed the jurisdiction to make an order finally disposing of the appellate proceeding. Therefore, there is an order of May 18, 1970 and that order stands in the way of the applicants. It is urged that the order is an administrative order. Inasmuch as the appeal had already abated, the order disposing of the memorandum of appeal must be constructed as made merely for statistical purposes. The contention cannot be accepted. As we have pointed out, the appellate proceeding was pending and had to be disposed of. It was disposed of on the ground that the remedy had been extinguished and the appeal had abated. The order disposing of the appeal is a judicial order, an order made in the exercise of the Court's judicial powers. It, is not an administrative order. 7. Before there can be any substitution of the legal representatives there must be an appellate proceeding in which the substitution can be effected. The appellate proceeding has already been disposed of by the order dated May 18, 1970, Consequently, this application before us must fail. 8. The question then arises whether we should, in the exercise of our inherent powers, recall the order of May 18, 1970. In the first place, that relief was included in the application of May 22, 1970 and the application has been dismissed. In the next place, the application under Rule 3 of Chapter X should have been made within the period of limitation for filing the appeal unless there was sufficient cause for obtaining the benefit of Section 5 of the Limitation Act. In the next place, the application under Rule 3 of Chapter X should have been made within the period of limitation for filing the appeal unless there was sufficient cause for obtaining the benefit of Section 5 of the Limitation Act. Rule 3 of Chapter X provides : "Where after a memorandum of appeal has been presented to the Court, any appellant or any party interested in the maintenance of an objection filed under Rule 22 of Order XII of the Code, is informed that any person who is arrayed as a party in such appeal or objection had died before the memorandum appeal was presented but after the decree or order appealed from was passed, he may, subject to the law of limitation, make an application for an order that the memorandum of appeal be amended by substitution for the person who is dead, his legal representative. The application shall state such facts as may be necessary to support it and shall be accompanied by an affidavit." It is urged by Shri V.P. Misra that the expression "subject to the law of limitation" refers to the period of limitation for filing an application under Rule 3 of Chapter X and not to the period of limitation for filing an appeal. It is an application for which no period of limitation has been specifically prescribed, he contends, and, therefore, the residuary provision should apply and that is three years. In our opinion, the expression "subject to the law of limitation" must refer to the Limitation prescribed for filing an appeal. When an appeal is instituted against a dead person, it is a defective proceeding. The defect must be removed before it can be considered as a good proceeding. The law of limitation contemplates a proceeding good in law, a proceeding which .............. satisfies the other essential requirements of the law. It is only when its imperfections are removed that the proceeding so perfected can be acted upon. Therefore, it was contemplated under Rule 3 that the defect in the appellate proceeding should be removed by bringing on the record the legal representatives of the deceased respondent within the period of limitation prescribed for filing the appeal. It is only when its imperfections are removed that the proceeding so perfected can be acted upon. Therefore, it was contemplated under Rule 3 that the defect in the appellate proceeding should be removed by bringing on the record the legal representatives of the deceased respondent within the period of limitation prescribed for filing the appeal. Where, as in this case, the appellant came to know of the death of the respondent after the period prescribed for filing the appeal, the benefit of Section 5 of the Limitation Act could be invoked. No such application has been made before us. And the explanation for the delay set out in the affidavit accompanying the application disposed of on April 27, 1970 is insufficient. It may be possible to say that as from August 13, 1969 when the applicants filed the substitution application under Rule 4 of Order XXII of the Code they erroneously, but bona fide, adopted a proceeding which was without jurisdiction, and, therefore, all the time taken thereafter may be condoned. But there is no convincing explanation of the delay which occurred before that date. 9. Shri V.P. Misra has vehemently contended that even though the bar of limitation exists, this Court is empowered in the interest of justice to amend the memorandum of appeal. Having regard to the circumstances of the case, we are not disposed to granting any relief on the basis of that contention. 10. The application is dismissed with costs.