(1.) A civil suit for declaration and permanent injunction (Suit No. 528 of 1962) was filed by Ganga Datt, Attar Singh, Jagat Singh, Amar Singh and Jaswant Singh sons of Debt Sahai in the Court of Senior Sub- Judge, Delhi against Gaon Sabha of Village Burari in which it was prayed that the order of the Revenue Assistant nesting the land set out in that suit in the Gaon Sabha was wrong, illegal, ultra vires and not binding on the plaintiffs. The impugned order was in respect of the vesting of the land which was the subject-matter of dispute in that suit in the Gaon Sabha in accordance with the provisions of the Delhi Land Reforms Act, 1954. The suit was decreed in favour of the plaintiffs. After the amendment of the Delhi Land Reforms Act, 1954 by the insertion of Section 161-B, the Union of India moved an application under the said provision for the setting aside of the decree. This application was dismissed by the Court of Shri H. C. Gupta, P. C. S.. Sub-Judge 1st Class, Delhi by his order dated 24-1-1967. Aggrieved from that order Union of India filed the present revision petition. In the mean time, however, Ganga Datt died on 26-3-1967. It is an admitted case that the revision petition was filed against Ganga Datt and others subsequent to the death of Ganga Datt. On the revision petition being admitted notices were issued to the present respondents whereupon the process server reported that Ganga Datt was dead. The fact came to the knowledge of the learned counsel for the present petition (Union of India) early in August, 1967. No steps were taken to bring the legal representatives of Ganga Datt on record or to rectify the filing of the revision petition against a dead party till February, 1970. On or about February 5, 1970 an application under Section 151 read with Section 153 and 0. 41, R. 20, Civil Procedure Code was moved in this Court seeking to bring the legal representatives of Ganga Datt on record. This petition has been resisted by the respondents who have urged that the legal representatives be not brought on record. When the matter came up for hearing before one of us (Hon'ble the Chief Justice) sitting singly he noticed the contentions of both the parties but considering the point involved to be of some importance directed the civil revision to be listed before a Division Bench. It has been noticed in the referring order that there was a preponderance of authority on the point that the provisions of O. 22 of the Code of Civil Procedure do not apply to revision petitions. So it was observed that the question which arose for determination was whether the petitioner should be allowed to implead the legal representatives of Ganga Datt as parties irrespective of the inordinate delay in making the application for bringing the legal representatives of Ganga Datt on record. It is in these circumstances that the matter has been placed before a Bench of this Court.
(2.) Mr. N. D. Bali has urged that the provisions of O. 22 of the Code of Civil Procedure do not apply to revision petitions and as such there is no limitation for moving an application for bringing the legal representatives of a dead respondent on record nor does a revision petition abate. He further contends that the provisions of Section 146 of the Code of Civil Procedure would clearly be attracted in the circumstances of the case and inasmuch as the petitioner could proceed against Ganga Datt it can also take proceedings or continue proceedings against persons claiming under Ganga Datt. Lastly, Mr. Bali contended that no fetters by way of limitation can be placed on the revisory jurisdiction of the High Court and once the matter has been brought to the notice of the Court irrespective of whether the parties appear or do not appear or proper parties are before the Court or not the Court must exercise its jurisdiction under Sec. 115 of the Code if the impugned order of the Court below falls within the mischief of any of the three sub-clauses of S. 115 of the Code of Civil Procedure. In short, what Mr. Bali contends is that filing of the revision petition against a dead respondent or not bringing his legal representatives on record for such a long time cannot and should not stand in the way of this Court on its revisional side in correcting the error in the impugned order of the trial Court. In support of his contention Mr. Bali first relied on an unreported decision of this Court rendered by V. S. Deshpande, J. on 3-2-1970 in C. Ms. Nos. 187 and 188 of 1969 in R. F. A. 344 of 1968 (Delhi), Union of India v. Tekan. In that case certain fields had been acquired by Union of India from six persons at whose instance a reference under Section 18 of the Land Acquisition Act. 1894 was made to the District Judge," Delhi by the Land Acquisition Collector. Delhi. During the pendency of the reference one of the applicants, Ram Chand, died and his legal representatives were brought on record. The District Judge made his award on 7-6-1968. The Union of India applied for a certified copy of the award in order to prefer an appeal against it. In the certified copy the name of Ram Chand appeared as one of the applicants presumably, because the cause title had not been changed in spite of the legal representatives of Ram Chand having been brought on record. The Union of India filed an appeal against the applicants including Ram Chand. On notice of appeal issued to Ram Chand it was reported that he had died even prior to the announcement of the award by the District Judge. Another applicant Tekan had died prior to the filing of the appeal but after the announcement of the award. An application was, accordingly, moved under O. 22, R. 4, Civil Procedure Code, to bring the legal representatives of Ram Chand and Tekan on record. In those circumstances it was held applying Section 146 of the Code of Civil Procedure that there was no limitation for bringing the legal representatives of Tekan on record and the application was allowed. The learned Judge was pleased to observe on the ratio of the decision of the Supreme Court in Smt. Saila Bala Dassi v. Smt. Nirmala Sundari Dassi, AIR 1958 SC 394, that
(3.) In our view the ratio of this judgment will not be attracted in the present case. Section 146 of the Code of Civil Procedure is only an enabling provision allowing a person to proceed or continue proceedings against any person claiming under a person who had earlier been proceeded against, or allowing a person claiming under a person who had originally commenced proceedings to continue the proceedings commenced by the former. As was observed by their Lordships of the Supreme Court in Smt. Saila Bala Dassi's case, AIR 1958 SC 394 Section 146, Civil Procedure Code has been enacted only with the object of facilitating the exercise of rights by persons in whom they come to be vested by devolution or assignment. No doubt the section should receive a beneficial interpretation and the scope of the section should not be whittled down by placing a too limited or narrow construction upon it. all the same the person in whom rights have vested by devolution or assignment should not have rights more than what the original litigant had. Similarly, a person in whom the rights have come to be vested should not be in a worse position than the person against whom the original litigation was commenced. Furthermore, the opening words of Section 146 of the Code of Civil Procedure make it clear that the benefits given to the representatives under this provision was subject to the other provisions of the Code or any law for the time being in force. In that view of the matter it would seem that in suits and appeals at least the rights conferred by Section 146 of the Code would be subject to compliance with the provisions of O. 22 of the Code of Civil Procedure and the Limitation Act. It is true that the provisions of O. 22, R. 10 are attracted only during the pendency of a suit or an appeal but then if no appeal was competent or no suit could be brought against a dead party but one is preferred the defect would not be curable by invoking the provisions of Section 146 of the Code. If a devolution of interest or assignment takes place after the decision of the suit the assignee or the representative has a right to file an appeal. Similarly, if the assignment or devolution takes place during the pendency of a suit or an appeal the representative or assignee is enabled to apply under 0. 22 of the Code and continue with the suit or the appeal. That is a contingency, however, which is quite different from an appeal or revision or a suit being filed against a dead person and his representatives sought to be brought on record by way of substitution. The provisions of O. 22 have been made specifically applicable to appeals by Order 22, Rule 11, Civil Procedure Code. It is not applicable to revisions and the inherent power of the Court to substitute parties can be exercised in case of revisions only in the context of exercising judicial discretion in interfering with the order of the Court below and not under Section 146 of the Code.