Surat Others v. Bhragunath Upadhyaya Others — 1988 DIGILAW 903 (ALL)

JUDGMENT A.P. Misra, J. - The present application for substitution has been moved on behalf of respondents Nos. 2 and 3 in the aforesaid appeal, for substituting Dinanath Upadhyaya as heir and legal representative of Surat Upadhyaya (appellant No. 1) and for substitution of Sudarshan Upadhyaya, Singhasan Upadhyay and Sagar Upadhyay as heirs and legal representatives of the deceasedrespondent No. 1 Bhrigunath Upadhyay. 2. The aforesaid second appeal was allowed ex parte on 1121981 by this Court. Thereafter, an application was filed on 3rd March, 1981, under section 151 CPC for recalling the aforesaid judgment and restoring the appeal to its original number. This application was moved by Sri Bhrigu Nath Upadhyay, the aforesaid deceasedrespondent No. 1. The aforesaid substitution application dated 24th May, 1983, was moved on 4th July, 1983. However, before making of this application for substitution on 6th July, 1982, the aforesaid application for recalling the ex parte judgment was allowed. Then an application was moved on behalf of the appellantsrespondents for declaring the order dated 6th July, 1982, as void as it was passed against the dead person, whose heirs were not brought on record. On 27th April, 1983, the said application of the appellants was allowed and the order dated 6th July, 1982, was set aside on the ground that admittedly Surat Upadhyay and Sri Bhrigunath Upadhyay both having died and their legal representatives not being brought on the record, the application dated 3rd March, 1961 moved by the respondent No. 1 should not have been allowed. Thereafter, on the 4th July, 1983, the substitution application was moved by the present applicantsrespondents for the substitution of the aforesaid persons. There was contest regarding the date of death of Surat Upadhyay, the present applicantsrespondents claiming him to have died on 10111980, while appellants Nos. 2 and 3 respondents alleging him to have died on 9th April, 1981. This Court by means of order dated 13th December, 1983, remitted the case to the court below for recording a finding about the date of death of Surat Upadhyay. The finding was recorded by the trial court by means of order dated 6th September, 1984, holding Surat Upadhyay to have died on 9th April, 1981. Then, again on the 14th May, 1985, an order was passed by this Court again allowing the aforesaid application dated 3rd March, 1981. The finding was recorded by the trial court by means of order dated 6th September, 1984, holding Surat Upadhyay to have died on 9th April, 1981. Then, again on the 14th May, 1985, an order was passed by this Court again allowing the aforesaid application dated 3rd March, 1981. An order was made for restoring the aforesaid appeal to its original number. Then, another application was made on behalf of the appellantsrespondents stating that the said order was passed without deciding the substitution application. Later, this Court after hearing learned counsel for the parties carne to the conclusion that since the substitution application was not decided, the order dated 14th May, 1985 was again recalled and it was ordered that the application dated 3rd March, 1981, for the recall of the judgment and order passed by this Court on 11th February, 1981, should be disposed of only after deciding the substitution application dated 4th July, 1983. Thereafter, the Hon'ble Mr. A. Banerji, Chief Justice, released the said case. Thus the present application for substitution has been placed before me for final disposal. 3. From the aforesaid facts it is clear that the present substitution application has been moved to the application dated 3rd March, 1981 made under section 151 CPC. According to the present applicants, the aforesaid second appeal was allowed ex parte without hearing the applicantsrespondents as, in fact, there was no notice to him of the Second Appeal as notice served on him indicated wrong year and thus the Vakalatnama, which was said to have been filed by the applicants could not be placed in the Second Appeal which resulted into ex parte decision. 4. As per various affidavits it emerges after recording of date of death of Surat Upadhyay by the trial court that he died on 9th April, 1981, while Bhrigu Nath Upadhyay died on 21st January, 1982. It was also not in dispute that the present substitution application was moved on the 4th July, 1982, for substituting the heirs of the aforesaid deceased persons. It is thus clear, no application for substitution was made within 30 days of the death of the aforesaid persons. It was contended on behalf of the respondentsappellants, since no explanation has been given by the present applicants in the substitution application for delay in applying for the substitution, thus his application is liable to be rejected. It is thus clear, no application for substitution was made within 30 days of the death of the aforesaid persons. It was contended on behalf of the respondentsappellants, since no explanation has been given by the present applicants in the substitution application for delay in applying for the substitution, thus his application is liable to be rejected. On the other hand, it was argued by the present applicants that the present substitution application being to the application dated 3rd March, 1981, and that application not being either in the suit or in appeal, but in miscellaneous proceeding, thus period of limitation of 90 days provided under Article 120 of the Limitation Act, 1963, would be inapplicable and period of substitution would be governed by Article 137(residuary article) period of which is three years. It is also not in dispute that the present application for substitution has been moved within a period of three years but beyond the period of ninety days. Thus, the main consideration is whether Article 120 or Article 137 would be applicable. 5. Learned counsel for the applicants urged that when the application on the 3rd March, 1981, was moved by the respondent No. 1 to the said appeal, that appeal stood finally decided and thus the said application could not he an application in appeal and proceedings initiated on the application could only be treated to be miscellaneous proceedings. He relied on the language used in Article 120, which refers to the legal representatives of a deceased (plaintiff or appellant) or (defendant or respondents). The expression of words in Article 120, Limitation Act, makes out limitation of ninety days and only governs proceedings in suit or in appeal and not to the miscellaneous proceedings. Reference was made in Chandradeo Pandey and others v. Sukhdeo Rai and others (AIR 1972 Alld 4504), in which it was held that the application for substitution of heirs in a revision in an application under section 151 CPC, hence period of limitation provided under Article 120 is inapplicable and period of limitation would be three years as provided under Article 137. He also relied on the case Smt. Sayeeda Begum and another v. Ashraf Husain and others ( AIR 1980 MP 12 ). In that case substitution application was made to the application for restoration of suit dismissed for default. He also relied on the case Smt. Sayeeda Begum and another v. Ashraf Husain and others ( AIR 1980 MP 12 ). In that case substitution application was made to the application for restoration of suit dismissed for default. It was held that Order XXII was not applicable and Article 137 and not Article 120 would apply. 6. Learned counsel for the applicants further contended that his present application for substitution is also under section 151 CPC. The principle laid down in the aforesaid decision is fully applicable, repelling the suggestion made on behalf of the applicants and the present respondents that the application could not be under section 151 but under Order 41, R. 21. It was urged, firstly, even if this could be treated to be an application under it, it could not be an application in appeal and as such an application will again be in miscellaneous proceedings and the person applying under it could only be applicant and not appellant as provided under Article 120 of the Limitation Act, and in the alternative, it was urged since in the present case his application is dated 3rd March, 1981, was made on account of nonappearance of the counsel for the applicants since Vakalatnama was alleged to have been filed in the appeal, which was mentioned in the notice sent by this Court, which referred to wrong year of the appeal and thus in law there was no notice at all of the said appeal and thus the application could only be tiered to be an application under section 151, CPC. 7. Learned counsel for the respondents, on the other hand, urged, the aforesaid Full Bench case of Chandradeo Pandey and others (supra) was in the case of revision and no parity could be given to the case of revision, to the present application and thus even if in revision it is held Article 137 applies it could not be applicable in the present applications. 8. Referring to the case in Smt. Sayeeda Begum (supra) it was urged that the said Division Bench case of M.P. High Court is in contradiction to the earlier Full Bench decision of the same court reported in AIR 1976 MP 136 , Nathu Prasad v. Singhai Kapurchand ( AIR 1976 MP 136 ). 8. Referring to the case in Smt. Sayeeda Begum (supra) it was urged that the said Division Bench case of M.P. High Court is in contradiction to the earlier Full Bench decision of the same court reported in AIR 1976 MP 136 , Nathu Prasad v. Singhai Kapurchand ( AIR 1976 MP 136 ). He also urged that the earlier view that Order XXII only applies to suits of original jurisdiction was later on modified to include various other proceedings and by virtue of Order XXII, Rule 11 also applies to appeals and the present application for substitution was made in the aforesaid application dated 3rd March, 1981 which in term was an application in the aforesaid Second Appeal should be treated to be an application in appeal and thus Article 120 would apply. In Chandradeo Pandey and others v. Sukhdeo Rai and others (supra) an application for substitution was moved in revision. It was held that Article 137 may or may not apply to the provisions under other Acts but there can be no manner of doubt about its applicability to the applications under Code of Civil Procedure. Reliance was placed to the language used in Order XXII, Rules 3 and 4 read with Article 120, which refers to the substitution of plaintiff and defendants in a suit and appellant and respondent in an appeal. It is on the basis of aforesaid language used in the aforesaid provisions it was held that the applicant in revision is not covered by the word plaintiff and defendant, appellant and respondent and thus period of limitation could not be under Article 120 but under Article 137. Another reason in the aforesaid Full Bench case in Chandradeo Pandey (supra) was if it could be said that the applicant in revision is also covered under Article 120 then the penalty analogous to that contemplated by Order XXII, Rules 3 and 4 could be attracted to revisions as well. The penalty referred to in the aforesaid provision is the abatement of the suit. In reply to this, learned counsel for the respondent Sri V.K.S. Chaudhary urged, since there was discrepancy in the period of limitation between the revisions and suits and appeals a suggestion was made in that judgment for making appropriate amendment in the Rules of Court for bringing it in line with others. In reply to this, learned counsel for the respondent Sri V.K.S. Chaudhary urged, since there was discrepancy in the period of limitation between the revisions and suits and appeals a suggestion was made in that judgment for making appropriate amendment in the Rules of Court for bringing it in line with others. It seems on this basis Rule 38A under Chapter VIII of the High Court Rules (Allahabad) was amended by means of notification dated 26th November, 1980 to include revisions also for making Order XXII, Rules 1 to 6 and 9 of CPC applicable. Earlier, as after the said rule the aforesaid provision was made applicable to the writ petition under Article 226 of the Constitution of India and Tax Acts references. He further relied on Nand Kishore v. Deputy Director (Consolidation) and others (1968 ALJ 1062) and Ram Prasad v. DDC and others (1987 RD 275). On the basis of the aforesaid Rule 38A the period of limitation in a writ petition was held to be ninety days. However, the decision in Nand Kishore (supra) is not basis of interpretation of Article 120 or the language used under section 141, CPC where by virtue of amendment to the Rules of the Court the provisions of Order XXII were made applicable by virtue of which limitation was held to be ninety days. To the same effect is the decision in the aforesaid case of Ram Prasad (supra). 9. It was nextly argued by Mr. Chaudhary, that the language of section 141 read with the Explanation added to it by virtue of 1976 amendment makes it clear that the procedure provided in this Code in regard to suits shall be applicable in all proceedings in any court of civil jurisdiction, and by virtue of amendment by adding the Explanation the proceedings was incorporated to include proceedings under Order IX and thus it is contended by virtue of language of section 141, CPC that the proceedings for substitution even to the present application could be proceedings covered under it and thus Order XXII would also be applicable. 10. Reliance was placed on the Full Bench case of Maha Ram and another v. Harbans ( AIR 1941 All 101 ). 10. Reliance was placed on the Full Bench case of Maha Ram and another v. Harbans ( AIR 1941 All 101 ). This was a case under the Agra Tenancy Act and an issue was submitted to the Civil Court under section 271 and after reference an application was made to refer the issue to arbitration and the question was whether the civil court was competent to refer it to arbitration as provided under Schedule 2, of the CPC. It was held that section 141, CPC is not restricted to original proceedings but it applies to all proceedings in civil court. The proceedings after reference in the civil court being proceedings in the civil court it was competent to refer it to arbitration by virtue of language used under section 141, CPC and Schedule 2 of CPC provided for such a reference of arbitration and that procedure being made applicable by the language under section 141 it was held that the finding based on such an award in arbitration was valid. This decision in effect held and removed the doubt, which was earlier, that by virtue of section 141, not only original proceedings but also to other proceedings in civil court is also applicable. The question whether, if any application is made in any such proceeding would fall under Article 120 or 137 was not even put up for adjudication. Reliance was also placed on Gokaran Singh v, Brij Bhushan Singh and others ( AIR 1939 All 717 ). This was a case under U.P. Encumbered Estates Act. In the proceedings before the Special Judge it was held that debtorapplicants are to be treated as plaintiffs and creditorclaimant as defendant. It was further held: ''Ordinarily in a suit relief is granted to the plaintiff and so the landlord must be regarded as the plaintiff in the proceedings under the Act and the creditor who has to put in his claim as the defendant. Hence if pending proceedings before the Special Judge the creditor claimant dies, Order 22, Rule 4 and not Order 22, Rule 3 applies. An argument was raised by Mr. Chaudhary, learned counsel for the respondent, that even in proceedings under the U.P. Encumbered Estates Act provisions of Order 22, Rule 4 was made applicable. 11. Hence if pending proceedings before the Special Judge the creditor claimant dies, Order 22, Rule 4 and not Order 22, Rule 3 applies. An argument was raised by Mr. Chaudhary, learned counsel for the respondent, that even in proceedings under the U.P. Encumbered Estates Act provisions of Order 22, Rule 4 was made applicable. 11. It is significant which is referred in that judgment that under Rule 6 framed by the Local Government, the proceedings under that Act were governed by the provisions of CPC. Thus, in view of that Order XXII CPC was made applicable. 12. Reliance was next placed in Ram Chandra Aggarwal and another v. The Stale of Uttar Pradesh and another AIR 1966 SC 1988. In this case a reference was made to the civil court under section [146(1)Ed)] Cr.P.C. & an argument was raised that the proceedings after reference is not a civil proceeding if thus the order of transfer under section 24, CPC could not be applicable. It was also argued therein that proceedings upon a reference under section 141, dealt with by civil court not being an original proceeding the provisions of section 141, CPC are not attracted as it relates to suits. Reference was made to the earlier decisions for holding that under section 141, CPC is not confined to the original proceedings like suits but it also applies to proceedings which is not original proceeding. However, the court did not go further and decided the question of interpretation of section 24, CPC itself by holding that the language used under it other proceedings is not confined to civil proceedings. Thus, the aid of section 141, CPC was not taken in that case. Finally, before conclusion reference was made to the case reported in 1976 Cuttak Law Times 760, which case could not be placed before me but extract of judgment was filed, which indicated that the learned Single Judge held that the provisions of Order XXII are applicable lo proceedings under Order IX of the Code and if there be no substitution as required, abatement would result. Reliance was placed in the case Ram Chandra Aggarwal (supra). The extract of judgment filed is a short judgment and the portion of the reasoning which has been supplied does not elaborate the point which is in issue in the present case. Reliance was placed in the case Ram Chandra Aggarwal (supra). The extract of judgment filed is a short judgment and the portion of the reasoning which has been supplied does not elaborate the point which is in issue in the present case. Apart from this, no other decision was cited on behalf of the respondent. 13. Coming to the language of section 141, CPC it is significant that it provides that procedure provided in this Code in regard to suits....... as far as it can be made applicable shall be followed in all proceedings in any court of civil jurisdiction. The use of the expression as far as it can be made applicable is very significant. It need not necessarily be every part of the procedureprovided secondly, what is made applicable is the procedure provided under it. There is difference between procedure and substantive right. Even if a procedure is made applicable the substantive right cannot be made applicable unless it has been made applicable specifically. From the catena of decisions it is a case by virtue of language used under this section not procedure in original proceedings in the nature of suit but other proceedings have been made applicable. 14. In none of the decisions cited by the learned counsel for the respondents it could be said that any decision except the aforesaid Cuttak decision, Brahmananda Mojhi v. Gopal Pradhan and others, holds directly in his favour. And this decision does not give detailed reasoning. 15. It cannot be doubted that by virtue of the use of the word 'procedure' as enlarged by the explanation added in 1977 the procedure provided is made applicable. However, it is significant Order XXII, Rules 3 and 4, CPC provide the cause of abatement on the death of the plaintiff or the defendant, if not brought on the record within the limitation provided. In the case of Smt. Sayeeda Begum (supra), the M.P. High Court held Applicability of the procedure provided in the Code for suits with the aid of section 141 to proceeding under Order 9, ex debito justicta, i.e. to prevent an injustice, cannot be doubted. The trouble arises when penal provisions, which in terms have not been made applicable to such a proceeding, though applicable to a suit, are sought to be invoked with the aid of section 141. The trouble arises when penal provisions, which in terms have not been made applicable to such a proceeding, though applicable to a suit, are sought to be invoked with the aid of section 141. The Full Bench decision of the Madhya Pradesh High Court in Nathu Prasad (supra), was taken into account in the latter M.P. case, as aforesaid and the point which had been adjudicated by the latter case was not called upon in the earlier Full Bench decision. I am in full concurrence with the reasoning given in the aforesaid case of Smt. Sayeeda Begum (supra). Order XXII admittedly by the use of the language was made applicable to the suits or original proceedings but by virtue of Order XXII, Rule 11 it was made applicable to appeals. It is significant while under rule 11 the provisions of Order XXII has been made applicable to the appeals it was not made applicable either to revision or other miscellaneous proceedings. If Order XXII was applicable to all proceedings referred to in section 141 apart from suit or original proceedings there was no need to include appeals by making such provision. This further clarifies that Order XXII since being procedure providing and refer to substantive right like abatement, has not been made applicable to other proceedings. 16. In this case, an argument was raised on behalf of the present applicant that even if the present application could be treated to be an application under Order XLI, Rule 21 it could not be treated to be an application in appeal. The appeal was finally decided and unless this application was allowed and the judgment of the appeal was set aside and the case was placed to its original number the appeal could not be said to be alive or pending. It is not in dispute that earlier the aforesaid Second Appeal was finally decided by this Court ex parte and thereafter the present application was moved for setting aside the same. Thus, on the date when this application was made the appeal was not pending. It is only after the present application being allowed, the order in appeal being set aside the appeal could revive and would be restored to its original number and thus it cannot be said that making of this application could be in appeal. Thus, on the date when this application was made the appeal was not pending. It is only after the present application being allowed, the order in appeal being set aside the appeal could revive and would be restored to its original number and thus it cannot be said that making of this application could be in appeal. Even after the decision of the said appeal by virtue of Order XLI, Rule 21, CPC the Legislature gave fresh right to the person as against whom appeal has been decided finally to apply for setting aside that appeal order. By giving such a right or making of such an application could not be said to be an application in appeal. It is only when this application is finally allowed an order in appeal could be set aside, and then the appeal could be heard on merits. 17. In Union of India v. Seth Shanti Sarup and others, AIR 1966 All 530 it has been held while dealing with applicability of Article 120 or 137 application for substitution of legal representatives of the deceased party to an application for certificate under Article 133 of the Constitution that at the stage of the application for certificate there is neither appellant nor respondent and thus application for substitution does not come within the meaning of scope of Order XXII, CPC which deals with death of plaintiff, defendant, appellant or respondent only. 18. Similarly, even in the present case when an application is made by the respondents for setting aside ex parte decree till the appeal is revived he is neither appellant nor respondent, but is only an applicant. It is only after his application being allowed and appeal being revived he will be respondent in the appeal. It is significant that the language used in Article 120, Limitation Act and also under Order XXII it is use of the expression plaintiff and defendant, appellant and respondent and further Order XXII, Rule 4 being only made applicable in the case of appeal it cannot be said that the provisions of Order XXII also applicable either to revisions or to miscellaneous proceedings in which the applicant is neither plaintiff, nor defendant or appellant of respondent. Since Article 120 of the Limitation Act provide limitation of ninety days for substituting the heirs the article is applied only to such proceedings which are referred to therein. Since Article 120 of the Limitation Act provide limitation of ninety days for substituting the heirs the article is applied only to such proceedings which are referred to therein. It is significant that Article 137, which is residuary Article provides for all other applications. Thus, the application which is not covered under Article 120 could be covered under Article 137. In the present case, since the applicants who have applied for substitution are neither plaintiffs nor defendants, neither appellants or respondents on the date on which he made such an application it cannot be urged that they may be treated to be person covered under Order XXII to be respondents in the appeal. 19. Even the language used in section 141, CPC applies to provisions of the Act as far as possible and to other courts of civil jurisdiction and such application of procedure cannot engulf the substantive right created under it unless specifically provided. There is provision for abatement under Order XXII and since period of limitation is provided for making an application for saving abatement being confined to suits and appeals could not cover miscellaneous proceedings including the one in the present case. 20. In this case an additional argument was raised that in fact notice was issued by the appellate court but on account of wrong reference of the year of the appeal in the notice it cannot be said that any notice was issued in this appeal to the applicant. Order XLI, Rule 21, CPC only applies to a case after issue of notice in appeal. However, since I am disposing of the present application for substitution by holding that even if Order XLL, Rule 21 applies which is the case of the appellants, Article 120 does not apply it would not be necessary to go into this question as the controversy raised in it could be the controversy while deciding the application dated 3rd March, 1981, which has yet to be decided and, therefore, it would not be right to express any opinion in the same. 21. 21. In view of the aforesaid, I am of the view that application for setting aside ex parte decree under appeal, which is made by the respondents, only be treated to be an application in miscellaneous proceedings and thus order XXII which provides for substantive right of the parties would not be applicable especially in the absence of any period of limitation to such applications. Thus, only residuary Article 137 would apply in such a case in which the period of limitation is three years. Admittedly, in the present case to which there is a dispute an application for substitution was made by the applicants for substitution of Surat Upadhyaya (appellant No. 1) and Bhrigunath Upadhyaya (respondent No. 1) having been made within period of three years from their death, it would not be said that the said application was barred by time. 22. Accordingly, the application for substitution of the aforesaid deceased persons are allowed and I order that in place of Surat Upadhyay the name of Dinanath Upadhyaya be substituted as his heir and legal representative and in place of Bhrigunath Upadhyay, the name of Sudershan Upadhyay be added along with Singhasan Upadhyay and Sigar Upadhyay who are already on record as respondents Nos. 2 and 3 respectively. 23. Before parting with the case in view of the controversy which has been repeatedly raised, it is desirable to consider amendment of the Rules of Court on the administrative side to include even miscellaneous proceedings under Rule 38A, Chapter VIII to bring in conformity in the period of limitation of ninety days alone with other proceedings for which amendment and incorporation has already been made in the said rule. 24. However, on the facts of the present case the costs shall be borne by the parties. (Application allowed)