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PETITIONER: BALRAM & OTHERS

       Vs.

RESPONDENT: THE IIIRD ADDITIONAL DISTRICT. JUDGE & ANR.

DATE OF JUDGMENT12/04/1983

BENCH: MISRA RANGNATH BENCH: MISRA RANGNATH PATHAK, R.S.

CITATION:  1983 AIR 1137            1983 SCR  (2) 734  1983 SCC  (2) 419        1983 SCALE  (1)370

ACT:      U.P. Imposition  of Coiling on Land Holdings Act, 1960- Section 38(1)- Scope of-Section extends procedure applicable to appeals  under  CPC  to  appeals  under  the  Act-Whether attracts entire procedure of the Code.

HEADNOTE:      During the  pendency of  the ceiling  appeal under  the U.P. Imposition  of Ceiling  on Land Holdings Act, 1960, the sole appellant died on January 9, 1980, On October 25, 1980, his three  sons applied  for setting  aside of abatement and condonation of  delay and for substitution of their names as legal  representatives   of  their   deceased  father.   The Additional District  Judge dismissed  the appeal on the view that there  was no sufficient cause for condonation of delay and for vacating the abatement.      The High  Court dismissed the appellants’ Writ Petition holding that  Article 120  of  the  First  Schedule  of  the Limitation Act,  1963 was  applicable and that therefore the petition for  substitution should  have been filed within 90 days from the date of death.      In appeal  to this Court, it was contended that in view of the  provisions of sections 38 and 42 of Act, the Code of Civil Procedure  1908  applied  only  for  the  disposal  of appeals and  the provisions  of the  Limitation  Act,  1963, excepting sections  4, 5  and 12,  were  not  applicable  to proceedings under the Act. Dismissing the appeal. ^      HELD: Section  38(1) of  the Act  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 substance in the contention that  the principles  of abatement and delay were not applicable to the instant case. [738 C-D]      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 section 34(1) 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 O. XXII

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of the  Code. Rule  11 of  Order  XXII  indicates  that  the provisions of the Code do apply to appeals. [737 B] 735      Again under  Rule 3(2)  of Order XXII if no application is made  under sub-rule  (1) within  the time limited by law the suit  shall abate.  Time has  been   limited by  law  in Article 120  of the  First Schedule  of the  Limitation  Act which provides  that an  application under  the Code to have the legal  representatives of  the deceased appellant made a party has to be 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.[737 E-G]      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 term of rule 9(3) of Order  XXII of  the Code. There is little room to dispute that if  order XXII of the Code applies necessarily Articles 120 and  121 of  the First  Schedule of  the Limitation  Act would also apply. [737 A]      In the instant case the application for substitution of the legal  representatives of  the deceased  appellant  when made, was beyond 150 days from the date of his death and the High Court had rightly rejected the appellants’ application.

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil Appeal No. 3952 of 1983      Appeal by  Special leave  from the  Judgment and  order dated the  6th October,  1982 of the Allahabad High Court in Civil Misc. Writ Petition No. 7029 of 1981.      A.K. Sen and Pramod Swarup for the Appellants.      O.P. Malhotra and Mrs. S.Dikshit for Respondent No.2.      The Judgment of the Court was delivered by      RANGANATH MISRA,  J. This appeal by special leave seeks to assail  the decision  of the  Allahabad High  Court in  a proceeding under Article 226 of the Constitution refusing to quash an  order of  the  IIIrd  Additional  District  Judge, Kanpur, holding  that Ceiling  Appeal No.  189 of 1976 under the U.P.  Imposition of  Ceiling on Land Holdings Act, 1960, had abated  for non-substitution  of  the  sole  appellant’s legal representatives.      The ceiling  appeal in question had been carried by one Rameshwar and during its pendency the sole appellant died on January 9,  1980. Balram,  Ram Bahadur and Jugal Kishore who are the  three sons  of Rameshwar  moved the appellate Court for substitution  of their names as legal representatives in place of Rameshwar 736 On October  25, 1980.  They applied  for  setting  aside  of abatement and  condonation of  delay. The  Additional Distt. Judge took  the view  that there was no sufficient cause for condonation of delay and good reasons had not been shown for vacating abatement. Accordingly the appeal was dismissed. An application under  Art. 226  was made  before the  Allahabad High Court  for quashing  of the  appellate  order.  It  was contended that  there was no period of limitation prescribed in respect  of proceedings  under  the  U.P.  Imposition  of Ceiling on  Land Holdings  Act, 1960  (’Act’ for  short) for 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

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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 XXII 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.      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  Act,   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 737      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. Sen’s 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.      Article 120  of First  Schedule of  the Limitation  Act provides that  an application  under the  Code to  have  the

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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 738 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 the  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 of 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.      The appeal fails and is dismissed without any direction for costs. P.B.R.                                     Appeal dismissed. 739