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PETITIONER: RANGUBAI KOM SHANKAR JAGTAP

       Vs.

RESPONDENT: SUNDERABAI BHRATAR SAKHARAM JEDHE AND ORS.

DATE OF JUDGMENT: 01/03/1965

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. SHAH, J.C. BACHAWAT, R.S.

CITATION:  1965 AIR 1794            1965 SCR  (3) 211  CITATOR INFO :  E          1979 SC1393  (35)

ACT:      Legal  representatives of deceased  respondent--Brought on  record  in  final  decree  proceedings--If  enures   for purposes    of   appeal    previously    filed--Appeal--When continuation of suit.

HEADNOTE:      The respondents filed a suit against the petitioner  in 1954  for the possession of certain property and  for  mesne profits   and   obtained  decree  in   their   favour.   The petitioner’s appeal to the High Court was dismissed in April 1959  and  a petition for special leave to  appeal  to  this Court  was  granted  in  June,  1959.  Thereafter,  the  7th respondent  died in November 1959. The petitioner filed  the present applications in October 1964 for bringing on  record the  legal  representatives of the 7th  respondent  and  for condonation  of  delay  on  various  grounds.  It  was  also contended  on behalf of the petitioner that in view  of  the fact that after the preliminary decree for mesne profits had been  passed, the respondents/plaintiffs brought  the  heirs and legal representatives of the deceased 7th respondent  on record  in  the  final decree proceedings  within  the  time prescribed, and as the legal representatives were brought on record  at  one stage of the suit on the basis of  the  rule laid down by the Privy Council in Brij Inder Singh v. Kanshi Ram,  44 I.A. 218, no question of abatement would  arise  in respect of the appeal; that the final decree proceedings are a  stage in the suit and the appeal is another stage in  the suit  and,  therefore, the bringing on record of  the  legal representatives in one stage of the suit will enure for  all stages of the suit.      HELD:  (i)  On  the facts of the  case  there  were  no sufficient  grounds for condoning the delay in bringing  the legal representatives of the 7th respondent on the record.     (ii) The order bringing the legal representatives of the respondent on record in the final decree proceedings  cannot enure  for  the  benefit of the  appeal  filed  against  the preliminary  decree. The appeal therefore abated so  far  as the 7th respondent was concerned. [217D]

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   An  order  bringing  the  legal  representatives  of   a deceased  party  on  the record passed at the  stage  of  an interlocutory  application  in a suit, or  passed  while  an appeal is pending where the suit is subsequently remanded to the  trial  court or if passed  while an appeal  is  pending against an interlocutory order in passed while an appeal the subsequent stages of the suit’ in all that suit, would enure for  made  at one stage of the suit be it  the  suit  these. cases  the order is  final appeal against the  interlocutory order  or  final order in the suit, for here the  appeal  is only a continuation of the suit. But the same legal position cannot  be  invoked  where  an  order  is  made  in  a  suit subsequent  to the filing of an appeal at an earlier  stage. Such an order cannot be Projected,backwards into the  appeal that has already been filed so as to become an order in that appeal [216F-217D] Brij Inder Singh v. Kanshi Ram, 44 I.A. 218 distinguished. Shankarnaraina   Saralaya  v.  Laxmi  Hengsu,  A.I.R.   1931 referred to.  Mad. 277. N)3S.C.I.--1 212

JUDGMENT:     CIVIL   APPELLATE  JURISDICTION:   Civil   Miscellaneous Petition Nos. 2402 of 1964. Applications for substitution for condonation of delay.                   AND          Civil Appeal No. 430 of 1963. Appeal  by special leave from the judgment and decree  dated April 8, 1959, of the Bombay High Court in First Appeal  No. 666 of 1954. S.G. Patwardhan and A.G. Ratnaparkhi, for the appellant. Naunit Lal, for the respondents.                            ORDER     Subba  Rao, J.  These are two applications, one for  the substitution of the legal representatives of respondent  No. 7 in Civil Appeal No. 430 of 1963 on the file of this  Court and  the  other for the condonation of delay in  filing  the first application.     The first question is whether there is sufficient ground for  excusing  the  delay  in  filing  the  application  for bringing the legal representatives of the 7th respondent  on record. The facts are as follows: Sakharam Maruti Jedhe  and others filed Special Suit    10 of 1964 in the Court of  the Civil  Judge,  Senior Division Poona, against  Rangubai  Kom Shanker   Jagtap  for  possession  of  the   plaint-schedule property  and  for  mesne  profits  and  obtained  a  decree therein.  Against  the said decree  defendant  preferred  an appeal  to the High Court of Bombay. The High Court  by  its judgment  dated  April 8, 1959, dismissed  the  appeal.  The defendant  filed an application for special leave to  prefer an appeal to this Court and the same was granted on June 16, 1959.  The  appeal was admitted on July  27,  1961.  Between these  two dates, on November 12, 1959, the 7th  respondent, Keshavarao  Marutirao  Jedhe died. Thereafter. on  March  7, 1964, the defendant filed Civil Application No. 1118 of 1964 in the High Court of Bombay for bringing on record the legal representatives of the 7th  respondent  and  for   necessary certificate  to that effect. On August 11, 1964, a  Division Bench of the High Court granted the certificate. On February 19,   1964,  the  defendant  filed  in  this   Court   Civil Miscellaneous  Petition  No. 2401 of 1964  for  bringing  on record  the legal representatives of the 7th respondent  and

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on  October 8,  1964,  filed  Civil  Miscellaneous  Petition No.  2402 of 1964 for condoning the delay of 4 years and  19 days  in  filing the aforesaid first petition. In  the  said petition  the petitioner gave two reasons for condoning  the delay. namely, (i) the petitioner is a poor widow living  in Poona with her daughters and there is no male member in  the family of the petitioner to look after the proceedings,  and (ii) after the preliminary decree in the proceedings for the determination  of the mesne profits, the plaintiffs  brought the  heirs  and legal representatives of  the  deceased  7th respondent on record within the time prescribed and     213 as  the legal representatives were brought on record at  one stage  of the suit, no question of abatement would arise  in respect  of  the appeal. The respondents  filed  a  counter- affidavit  pointing  out  that there  were  no  grounds  for excusing  the inordinate delay, that the appellant had  been conducting  this long drawn litigation from the  year  1946, that  she  had a son-in-law who was helping  her,  that  the deceased  was  a  prominent man of  Poona  whose  death  was published  in all the newspapers and that the appellant  was living in the same locality and she must have had  knowledge of his death soon after it occurred. It was further  pleaded that  the  fact that the legal representatives  of  the  7th respondent  were  brought  on record  in  the  final  decree proceedings  could not in law prevent the abatement  of  the appeal, if they were not brought on record in the appeal  in time.     Under O.XVI, r. 14, of the Supreme Court Rules, 1950, an application to bring on record the legal representatives  of a  deceased appellant or respondent shall be made within  90 days of the death of the said appellant or respondent. Under the  proviso thereto. in computing the said period the  time taken  in obtaining a certificate from the High Court  shall be  excluded. Even if the said time is excluded, there  will be a delay of about 31/2 years in filing the application  to bring   the  legal  representatives  of  the  deceased   7th respondent  on record. From the counter-affidavit  filed  by the  respondents it is clear that the 7th respondent  was  a prominent  citizen  of Poona and the fact of his  death  was published in all newspapers; and the petitioner resides very near the place where the 7th respondent was living. She  has been  conducting this litigation from the year 1946 and  was in  cop,  tact  with  her Advocates from  time  to  time  in connection with the appeal. She has also a son-in-law who is helping her in the litigation. She had also the knowledge of the   fact  that  the  legal  representatives  of  the   7th respondent  were  brought  on record  in  the  final  decree proceedings.  In the circumstances the fact that she  is  an illiterate  woman cannot possibly be a ground  for  excusing this inordinate delay in bringing the legal  representatives of  the  7th  respondent  on  record  in  the  appeal.   We. therefore,  hold  that  there is no  sufficient  ground  for excusing the delay in bringing the legal representatives  of the 7th respondent on record.     The  next question raised is an interesting one of  law. From  the aforesaid narration of facts it will be seen  that the legal representatives of the 7th respondent were brought on  record  within the prescribed time in the  final  decree proceedings. The question is whether it would enure for  the benefit  of the appeal; that is to say whether by reason  of that fact there is no abatement of the appeal.     The  relevant  provisions of the  Supreme  Court  Rules, 1950,  reads thus: We have already given the gist of  O.XVI, r. 14 of the said Rules. Rule 14-A thereof reads:

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214                   "The provisions of Order XXII of the  Code               relating  to abatement and of Article  171  in               the  First Schedule to the  Indian  Limitation               Act.  1908 (IX of 1908), shall, so far as  may               be   applicable,   apply   to   appeals    and               proceedings  under rule 12 and rule 13 in  the               High Court and in the Supreme Court." Rule  14-A by reference incorporates the rules of  abatement in  the  Code of Civil Procedure and also Art.  171  in  the First  Schedule to the Indian Limitation Act in the  Supreme Court Rules. Under O.XXII, rr. 3 and 4 of the Code of  Civil Procedure,  if the plaintiff or the defendant dies  and  the right to sue does not survive to the surviving plaintiff  or against  the  surviving defendant, as the case may  be,  his legal representatives shall be brought on record within  the prescribed time; and where within the time limited by law no application  is  made  the suit shall abate so  far  as  the deceased  plaintiff  is concerned or  against  the  deceased defendant, as the case may be. Under r. 11 thereof. "in  the application of this Order to appeals, so far as may be,  the word "plaintiff" shall be held to include the appellant. the word  "defendant"  a  respondent, and  the  word  "suit"  an "appeal". The result is that for the purpose of abatement  a suit and an appeal are treated as different proceedings  and the  suit or the appeal, as the case may be, abates  if  the legal representatives of the deceased plaintiff or defendant are not brought on record within the time prescribed.  Under Art.  171  of the First Schedule to the Limitation  Act,  an application to set aside an order of abatement shall be made within  60  days from the date of abatement. The  result  of these  provisions  is  that if an application  to  bring  on record the legal representatives of a respondent is not made within  90  days  from  the  date  of  death  of  the   said respondent,  the  appeal abates; but an application  to  set aside  that  abatement can be made within 60 days  from  the date of abatement. But, if by reason of the fact that the legal representatives of the deceased 7th respondent were brought on record in the final decree proceedings, there was no abatement, this Court no doubt will exercise its discretion liberally in condoning the delay in not formally getting the legal  representatives of a deceased party, recorded in appeal in time. The main contention-therefore, is that by reason of the fact that  they  were  brought  on record  in  the  final  decree proceedings, there was no abatement of the appeal.     It  is said that the final decree proceeding is a  stage in  the  suit and the appeal is another stage in   the  suit and,  therefore,  the  bringing  on  record  of  the   legal representatives in one stage of the suit will enure for  all stages  of the suit including the appeal.  This  conclusion, the  argument  proceeds,  flows from the  reasoning  of  the judgment  of the Judicial Committee in Brij Inder  Singh  v. Kanshi  Ram(1). The relevant facts of that case were  these: Pending  a  suit an application was made  for  ,directing  a party to produce (1) [1917] L.R. 44 I.A. 218, 228.     215 certain  books and that was ordered by the  District  Judge. Thereafter  an  application was made to the Chief  Court  to revise the order of the District Judge. Pending the revision the  plaintiff  and  the  2nd  defendant  died.  Within  the prescribed time their legal representatives were brought  on record  in  the revision.  Subsequently  that  revision  was dismissed  as  withdrawn. The legal representatives  of  the

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plaintiff  and the 2nd defendant were not brought on  record in  the  suit within the time prescribed. The  question  was whether  the  suit had abated. The Judicial  Committee  held that  the suit did not abate and the following reasons  were given for that view:                   "The  plaintiff as representative  of  the               original   plaintiff,  and   the   defendant’s               representatives   of   Joti  Lal,   had   been               introduced  in the Chief Court. No doubt  that               was   only   done   in  the   course   of   an               interlocutory application as to the production               of books. But the introduction of a  plaintiff               or  a  defendant  for  one  stage  of  a  suit               is   an introduction for all stages,  and  the               prayer,  which  seems  to have  been  made  ab               majorem  cautelam,  by the plaintiff,  in  his               application  to the  District   Judge  Prenter               under  s.  365,  was  superfluous  and  of  no               effect. Coates, the judgment debtor, was  only               formally  called, and the nonpresence  of  his               representatives would afford no ground for the               abatement of the suit."  This judgment is an authority for the position that if  the legal  representatives of a deceased plaintiff or  defendant are brought on record in an appeal or revision from an order made in the suit. that would enure for all subsequent stages of the suit. The same principle was sought to be extended in a  Madras  decision to a cross appeal:  see  Shankaranaraina Saralaya  v,  Laxmi  Hengsu(1).  There,  two  appeals   were independently  filed against the decree in a  suit--one  was flied  by the plaintiff and the other by the defendant.  The plaintiff-appellant died and in the appeal filed by him  his legal  representatives  were  brought  on  record  in  time, whereas  it  was  not so done in the  appeal  filed  by  the defendant-respondent.  It was argued that by reason  of  the fact  that the legal representatives of the  plaintiff  were brought  on record in the appeal filed by him there  was  no abatement  in the appeal filed by the defendant.  The  Court negatived the contention and when the aforesaid decision  of the  Privy  Council was cited, it was distinguished  on  the following grounds:               "Their   Lordships   have   held   that    the               introduction of a plaintiff or a defendant for               one stage of a suit is an introduction for all               stages.   When  the  subject-matter   of   the               interlocutory  application was pending in  the               appellate Court it was deemed to be one  stage               of the suit and therefore there was no need to               put in a fresh application at a further  stage               of  the suit when it came on for trial  before               the first Court. Can it be said in the present               case that               (t) A.I.R. 1931 Mad. 277, 278.               216               what  was done in one appeal could  enure  for               the  benefit  of  another  appeal  unless  the               latter   appeal   can  be  deemed  to   be   a               continuation or a further stage of the  appeal               in   which  the  legal  representatives   were               brought  on  record? I am constrained  to  say               that  it is difficult to extend the  principle               of  the decision of the Privy Council  to  the               facts of this case." This  decision accepts the principle laid down by the  Privy Council  but distinguishes the case before it on the  ground

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that  the  interlocutory appeal is not a continuation  or  a further   stage   of   the  appeal  in   which   the   legal representatives were brought on record. Many other decisions were  cited at the Bar, but they only support  the  position that  in  bringing the legal representatives of  a  deceased party on record in one appeal will not enure for the benefit of a cross appeal.     Let  us  now  consider  the  question  on  principle.  A combined reading of Order XXII, rr. 3, 4 and 11, of the Code of  Civil  Procedure shows that the  doctrine  of  abatement applies  equally to a suit as well as to an appeal.  In  the application of the said rr. 3 and 4 to an appeal, instead of "plaintiff"  and "defendant", "appellant"  and  "respondent" have to be read in those rules. Prima facie. therefore, if a respondent  dies  and  his  legal  representatives  are  not brought  on  record within the prescribed time,  the  appeal abates as against the respondent under r.4, read with  r.11, of  O.XXII  of  the Code of Civil Procedure.  But  there  is another  principle recognized by the Judicial  Committee  in the  aforesaid  decision which softens the  rigour  of  this rule.   The   said   principle  is   that   if   the   legal representatives are brought on record within the  prescribed time at one stage of the suit, it will enure for the benefit of all the subsequent stages of the suit. The application of this  principle to different situations will help to  answer the  problem  presented in the present case. (1) A  flied  a suit  against  B for the recovery of  possession  and  mesne profits. After the issues were framed. B died. At the  stage of an interlocutory application for production of documents, the legal representatives of B were brought on record within the time prescribed. The order bringing them on record would enure  for the benefit of the entire suit. (2) The suit  was decreed and an appeal was  filed  in  the  High  Court   and was   pending   therein. The defendant died  and  his  legal representatives  were  brought  on  record.  The  suit   was subsequently remanded to the trial Court. The order bringing the  legal  representatives on record in  the  appeal  would enure for the further stages of the suit. (3) An appeal  was flied against an interlocutory order made in a suit. Pending the appeal the defendant died and his legal  representatives were brought on record. The appeal was dismissed. The appeal being  a  continuation  or a stage of the  suit.  the  order bringing the legal representatives on record would enure for the subsequent stages of the suit. This would be so  whether in the appeal the trial Court’s        217 order  was confirmed, modified or reversed. In the  above  3 illustrations one fact is common, namely, the order bringing on record the legal representatives was made at one stage of the  suit.  be it in the suit or in an  appeal  against  the interlocutory order or final order made in the suit, for  an appeal  is  only  a continuation of the  suit.  Whether  the appellate  order confirms that of the first Court,  modifies or  reverses it replaces or substitutes the  order  appealed against.  It takes its place in the suit and becomes a  part of  it.  It  is  as it were the  suit  was  brought  to  the appellate  Court at one stage anti the orders  made  therein were  made in the suit itself. Therefore, that order  inures for the subsequent stages of the suit.     But  the  same legal position cannot be invoked  in  the reverse or converse situation. A suit is not a  continuation of  an  appeal. An order made in a suit  subsequent  to  the filing  of an appeal at an earlier stage will  move  forward with  the  subsequent stages of the suit  or  appeals  taken therefrom;  but  it cannot be projected backwards  into  the

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appeal  that  has  already been filed.  It  cannot  possibly become an order in the appeal. Therefore, the order bringing the legal representatives of the 7th respondent on record in the final decree proceedings cannot enure for the benefit of the  appeal  filed  against  the  preliminary  decree.   We, therefore,  hold  that the appeal abated so far as  the  7th respondent was concerned. In the result, the petitions are dismissed.                                    Petitions dismissed. 218