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1978 DIGILAW 108 (PAT)

Harakh Nath Singh v. Lodha Singh

1978-04-28

L.M.SHARMA, MANORANJAN PRASAD

body1978
ORDER OF THE COURT This is an application for substitution of the heirs of the opposite party no. 1 and 7 who have died after filing of the Civil Revision application. The main application is directed against the order dated the 25th November, 1976 and was filed on the 22nd of December, 1976, The opposite party no.1 died on the 26th of January, 1977 and opposite party no. 7 on the 17 January, 1977. The substitution application has been filed on the 8th of July, 1977. 2. On behalf of some of the heirs sought to be substituted, Mr. Shambhu Prasad has contended that Order 22 of the Code of Civil Procedure applies to a Civil Revision application and since the petition for substitution has been filed after the expiry of the period of limitation the same can not be allowed. 3. When the present application was placed for orders before Mr. Justice Shambhu Prasad Singh, sitting singly he referred it to a Division Bench, since the question has not been decided authoritatively by our High Court. It has, accordingly, been placed for orders before us. 4. In support of the proposition that no question of abatement arises in a Civil Revision application, Mr. N.K. Prasad has relied upon the decisions of several High Courts, in the case of Chandradeo Pandey and others V. Sukhdeo Rai and others, Bubulal and another V. Manilal, Mohd. Sadat Ali Khan V. The Administrator, Corporation of City of Lahore Union of India V. Ganga Dutta and others and Manickam and others V. MR. R.M. Ramanathan and others. He has further referred to a Division Bench decision of this Court in Babu Laxmi Narain Singh and others V. Satya Narain Singh and others where, according to the learned counsel, the Full Bench decision of the Allahabad High Court has been followed. 5. The decisions relied upon on behalf of the petitioners do support their case. Mr. Shambhu Prasad, in reply thereto referred to the decision of the Supreme Court in Shankar Ramchandra Abhyanker V. Krishnaji Dattatrayat Bapat 7 and contended that in view of the observations made therein that the expression 'appeal' includes a revision, Order 22 must be held to be applicable to the present case. Mr. Shambhu Prasad, in reply thereto referred to the decision of the Supreme Court in Shankar Ramchandra Abhyanker V. Krishnaji Dattatrayat Bapat 7 and contended that in view of the observations made therein that the expression 'appeal' includes a revision, Order 22 must be held to be applicable to the present case. He further relied on the judgment of the Privy Council in Nagendra Nath Dey and another V. Suresh Chandra Dey and others, P. P. P. Chidambara Nadar V. C. P. A. Rama Nadar and others and a decision of the Calcutta High Court in Bacharaj Nyahalchand Marwadi V. Bapaji Tukararn Avati. The correctness of the decisions mentioned by Mr. N.K. Prasad has been challenged. 6. In Nagendra Nath Dey and another ; Suresh Chandra Dey and others, the question which arose related to the interpretation of article 182 (2) of the Limitation Act, 1908. In the third column it was mentioned that period of limitation would begin to run from the date of the final decree or order of the appellate court where there has been an appeal. While construing this article it was held that even in a case where a revision application had been filed under section 115 of the Civil Procedure Code, to the High Court, the judgment therein would be included in the term the final decree or order of the appellate Court. In Shankar Ramchandra Abhyankar V. Krishnaji Dattatraya Bapat, the question was whether the High Court could interfere under Articles 226 and 227 of the Constitution with the order passed In a proceeding under the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947 when a petition for revision under section 115 of the Code of Civil Procedure against the same order had been previously dismissed by the High Court. The contention of the respondents in the writ application was based on the ground that the impugned order had merged in the judgment of the High Court in the Civil Revision case. The contention of the respondents in the writ application was based on the ground that the impugned order had merged in the judgment of the High Court in the Civil Revision case. While dealing with this aspect of the matter, the Supreme Court held that the aid of the High Court on the revisional side is invoked on the basis that it is a superior court and it can interfere for the purpose of rectifying the error, and section 115 of the Code of Civil Procedure subscribes the limit of that jurisdiction, but the Jurisdiction which is exercised, is a part of the general appellate jurisdiction of the High Court as a superior Court. In both these cases, strongly relied upon by Mr. Shambhu Prasad, the question which is arising before us did not precisely arose. Reliance is being placed upon the interpretation of the expression appeal. In including a revision A close examination of the facts of the two cases would show that the observations made therein have no application to the point under consideration. The expression 'appeal' is capable of conveying two different ideas, one in the ordinary acceptation of the term which is wider and larger in its scope, and the other in a limited technical sense. As has been pointed out above, the back ground in the two cases before the Privy Council and the Supreme Court was such that the larger meaning of the expression had to be given. The purpose of article 182 of the Limitation Act, 1908 was to give extended time to the decree holder for executing a decree by reference to a stage when it became final. The pendency of an appeal against the decree or of a Civil Revision application stood on the same level for this aspect. It mattered little whether the decree was in jeopardy in a Civil Revision or in an appeal. The pendency of an appeal against the decree or of a Civil Revision application stood on the same level for this aspect. It mattered little whether the decree was in jeopardy in a Civil Revision or in an appeal. For that reason the Privy Council had to interpret the expression 'appeal' in the general larger sense, and while so doing their Lordships were conscious of this aspect, which is apparent from the following observation :- "There is no definition of appeal in the Civil P.C. but there is no doubt that any application by a party to an appellate Court, asking it to set aside or revise a decision or a Subordinate Court, is an appeal wit bin the ordinary acceptation of the term, and that it is no less an appeal because it is irregular or incompetent". (emphasis is by us) In Shankar Ramchandra Abhyankar V. Krishha ji Dattatraya Bapat the question was whether the High Court could examine under its writ jurisdiction, the correctness of an order, which had been earlier examined under section 115 of the Code of Civil Procedure. It "as held, that, by delivering the earlier judgment in a Civil Revision, the High Court was exercising a jurisdiction as a Superior Court and in that context it was further observed that the revlsional jurisdiction was part of the appellate jurisdiction. From the following observations in paragraph 6 of the judgment it is manifest that the word 'appeal' is capable of being construed in different senses. “..... but the jurisdiction which is being exercised (under section 115 C.P.C.) is a part of the general appellate jurisdiction of the High Court as a superior Court. It is only one of the modes of exercising power conferred by the Statute; basically and fundamentally it is the appellate jurisdiction of the High Court which is being invoked and exercised in a wider and larger sense:' (emphasis is ours) In the context in which the question arose, before the Supreme Court it is obvious that the expression had to be construed in its larger sense. The decision of the Madras High Court in P.P.P. Chidambaru Nadar V. C.P.A. Rama Nadar and others also related to the construction of article 182 and was therefore covered by the interpretation given in Nagendra Nath V. Suresh Chandra Dey and other. 7. The decision of the Madras High Court in P.P.P. Chidambaru Nadar V. C.P.A. Rama Nadar and others also related to the construction of article 182 and was therefore covered by the interpretation given in Nagendra Nath V. Suresh Chandra Dey and other. 7. In the present case the question arises in relation to the interpretation of Order 22 of the Code of Civil Procedure and article 120 of the present Limitation Act, which read together lay down the law of abatement. Order 22 applies to suits and by virtue of Rule 11 which is in the following terms also to appeals. "11. Application of order to appeal-In the application of this order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" as "respondent" and the word "suit" an appeal:' The argument on behalf of the opposite party is that the term 'appeal' includes a revision. The sub-rule 1 of rules 3 and 4 of Order 22, dealing with the procedure in cases of death of a plaintiff or a defendant, as the case may be, enjoin for filing of an application for substitution of the legal representative of the deceased, and rule 3(2) and rule 4(3) provide that if no such application is made within the time prescribed by law the suit shall abate so far as the deceased party is concerned. The period is prescribed under article 120 of the Limitation Act, 1963, and the third column of the article is in the following terms :- “The date of death of the plaintiff, appellant defendant or a respondent as the case may be" Mr. Shambhu Prasad contended that the words 'appellant' and 'respondent' in article 120 include 'petitioner' and 'opposite party.' 8. The Civil Procedure Code deals with procedure in relation to civil litigation and the expressions 'suit' 'appeal' 'revision' ‘execution' etc., in regard to which specific procedural requirements have been laid down, have been used as conveying precise technical limited meanings. While dealing with an 'appeal.' the Code refers to an appeal under section 96, or under section 100 of section 104 and does not refer to the general appellate jurisdiction In the wider sense. While dealing with an 'appeal.' the Code refers to an appeal under section 96, or under section 100 of section 104 and does not refer to the general appellate jurisdiction In the wider sense. And since 'revision' has been dealt with separately under section 115 of the Civil Procedure Code, it can not be assumed that the Code intends to include the 'revision' in the expression 'appeal’ 'Appeal' and 'revision' have been separately dealt with and the difference in their identity can not be lost sight of while interpreting the provisions of the Code. This is the reason why in the Schedule, three separate Orders, namely Orders 41, 42 and 43 are included for dealing with the three finds of appear is and there is no other order dealing with general appeals. We are, therefore, of the view that the expression 'appeal' in Order 22 rule 11. does not include a 'revision.' 9. In article 120 of the Limitation Act, 1963 although care has been taken to mention the four forms 'plaintiff' 'defendant' 'appellant' 'respondent' separately there is a clear omission of the words 'petitioner' or 'opposite party: Mr. N.K. Prasad rightly pointed out that under the old Limitation Act, no period had been prescribed for tiling a Civil Revision application, and the Act, "as making a distinction between an 'appeal' and a 'revision' (see A.I.R. 1957 Patna 16 and A.I.R. 1950 Patna 470 ). The treatment, while prescribing the limitation for an 'appeal' was different than that in article 182 and for that reason it was consistently held that the article prescribing the limitation for an 'appeal' was not applicable to revision. When it was considered desirable to prescribe a period of limitation for a revision application also, a separate article, namely article 133 has been inserted in the present Limitation Act. The conclusion is irresistible that for the purpose of article 120 the expression 'appeal' does not include a revision, 10. In the Calcutta decision, relied upon on behalf of the opposite party, reported in 21 Indian Cases 407, the' point was not discussed at all and the conclusion was assumed in a single sentence. The decision which is not binding on us, is not of much help. Mr. Shambhu Prasad further said that a recent decision of the Calcutta High Court has been given on the same lines which is reported in 1975 (2) C.L.J. 191. The decision which is not binding on us, is not of much help. Mr. Shambhu Prasad further said that a recent decision of the Calcutta High Court has been given on the same lines which is reported in 1975 (2) C.L.J. 191. This decision could not be placed before us as the report is not available either with the learned counselor in the High Court's library. We are, there fore, not in a position to say anything about it. 11. Mr. Shambhu Prasad next contended that the provisions of Order 22 should be applicable to revision applications by Virtue of section 141 of the Code. He placed reliance on the amendment of the section in 1976 by the inclusion of the explanation which states that the expression "proceeding" in the section does not include any proceeding under article 226 of the constitution. The contention is that this suggests that the section continues to apply to a Civil Revision application. The fallacy in the argument is that it is based on an assumption that the section, earlier, applied to Civil Revision, applications. This question was raised and considered by the Full Bench of the Lahore High Court in the case of Mohd. Sadat Ali Khan V. The Administrator, Corporation of City of Lahore and it was held that Order 22 could not be read in conjunction with section 141, as the section is so drafted as to enable a Court to apply the procedure in regard to suits to such proceedings as are in pari materia with suits and thus original in character. A revision is very much unlike a suit and, therefore, can not attract the section. It will be noted in this regard that the procedure which section 141 makes applicable to other proceedings a procedure in regard to suits only. The word appeal has been omitted from the section. Besides, the object of section 141 is to enact in regard to proceedings which are already not covered by the Code. In so far revisions are concerned, a right in this regard has been created under the Code, and this is another reason as to why the application of section 141 can not be envisaged. 12. The Full Bench decision of the Allahabad Court in Chandradeo Pandey and others V. Sukhdeo Rai and others has directly decided the question with which we are dealing. 12. The Full Bench decision of the Allahabad Court in Chandradeo Pandey and others V. Sukhdeo Rai and others has directly decided the question with which we are dealing. A Division Bench of our Court in Babu Narain Singh & ors, V. Satya Narain Singh & ors. was considering the period of limitation application to a substitution petition in regard to application for certificate to appeal to the Supreme Court and in that connection the Full Bench decision of the Allahabad High Court was followed with a slight modification. Allahabad High Court had held that the substitution petition was maintainable under section 151 of the Code and this Court observed that section 151 of the Code does not create any power and merely preserves the inherent jurisdiction of the Court and, therefore, it could not be said that the application was maintainable under section 151. Except for this difference, the principle of the Allahabad decision was accepted. 13. In the result it has to be held that the provisions of the Order 22 of the Code of Civil Procedure do not apply to a substitution application in Civil Revision applications filed under section 115 of the Code. An order of substitution can be passed by the Court either under section 146 or under its inherent powers and in both these cases the period of limitation would be three years under article 137 of the Limitation Act. Since the present application was filed within six months of the death of the opposite party, and on the very next day of the admission of the case, it is difficult to hold that the petitioners were guilty of such delay which should not be ignored in the Court's discretion. 14. Mr. Shambhu Prasad also mentioned that as the admission of the case was made before the substitution it cannot be said that it had been admitted. in so far as the substituted heirs are concerned and the case suffers from a defect thereby, We do not see any merit in this argument since an order of admission does not decide any right of the parties and is only passed by way of a procedural step towards the final hearing of the case. 15. In the result the substitution is allowed and the heirs mentioned therein are substituted in place of the deceased parties. 15. In the result the substitution is allowed and the heirs mentioned therein are substituted in place of the deceased parties. In an affidavit filed on behalf of the opposite party it is mentioned that opposite party no. 7 has left behind three daughters besides the heirs as mentioned by the petitioners. In the circumstances we add them also as opposite parties. Substitution ordered.