DEVAKI AMMA Vs. KADUNGUNNI NAIR

JUDGEMENT

(1.) The first application is for impleading supplemental respondents 2 to 9 as the legal representatives of the sole respondent when the appeal was filed. The 2nd petition is For excusing the delay in impleading them.

(2.) The judgment under appeal is dated 27th June 1974. The Second Appeal was filed on 11th June 1976. The respondent died in December 1975. The impleading petition is dated 6th October 1976. The application was opposed by the respondent's counsel on the ground that it was filed six months after the death of the respondent in an appeal which was still born. It was also contended that an application to implead the legal representatives of a dead respondent in the Second Appeal was not maintainable. This submission does not appear to be well founded. Occasions may arise where a party, in spite of his best efforts is kept in the dark about the death of one Or the other respondents in the appeal. Such party may bona fide file an appeal with the deceased respondent as a party. It cannot be said that this Court is helpless to come to the rescue of such parties on being satisfied with his or her bona fides. Under S.153 of the Code of Civil Procedure, the Court has power to amend any defect or error in any proceeding in a suit; on such terms as to costs or otherwise as it may think fit. The question for consideration is whether the enabling provision contained in S.153 could be used in an appeal since the section deals with "in any proceeding in a suit" and secondly whether the defect in filing the Second Appeal with the deceased respondent is "an error in any proceeding in a suit". In my view, a very liberal construction has to be given to the phraseology used in the section, for, it enables the Court to do justice where it is satisfied that an error has crept in for no fault of the party. I hold that an error in the institution of an appeal can be brought within the ambit of the expression "error in any proceeding in a suit", with the aid of S.141 Civil Procedure Code and since an appeal is a continuation of the suit.

(3.) A Full Bench of the Madras High Court had occasion to consider a similar question in the decision reported in Gopalakrishnayya v. Lakshmana Rao ( AIR 1925 Mad. 1210 ). The Full Bench held that an appeal was a proceeding in a suit and that if an appeal was presented against a person who was dead on the date of the presentation of the appeal, the cause title could be permitted to be amended under S.153 Civil Procedure Code. Though the appeal as filed was incompetent, S.153 Civil Procedure Code could be called in aid to direct the amendment prayed for. The principle enunciated in the Full Bench decision squarely applied to the case on hand and I am in respectful agreement with the same.