VED PRAKASH MOTHERS Vs. DULI CHAND

JUDGEMENT

(1.) This is an application u/R. 3 of Ch. X of the Rules of Court. Duli Chand filed a suit for specific performance against the applicant. The suit was dismissed. Thereafter, an appeal preferred by Duli Chand was allowed on October 15, 1968. The applicants filed a second appeal in this Court on January 2, 1969 impleading Duli Chand as respondent. Before this Duli Chand had already died on November 5, 1968, that is after the decree of the lower appellate court and before the second appeal was filed. On August 13, 1969, the applicants applied u/R. 4 of O. XXII of the CPC praying that the name of Duli Chand deceased in the second appeal be deleted and the names of his legal representatives substituted. This was accompanied by an application u/S. 5 of the Limitation Act attempting to explain the delay in filing the substitution application. It was averred that the applicants had come to know of the death of Duli Chand on May 16, 1969 only and that subsequently one of the applicants, who was also pairokar on behalf of the others, fell ill from typhoid and reached Allahabad only after the first week of August for filing the substitution application. The application u/S. 5 of the Limitation Act was dismissed by a learned single Judge on April 27, 1970 in the opinion that there was no ground for condoning the delay, and accordingly on the same date the substitution application was also dismissed. On May 18, 1970 an order was made on the memorandum of appeal declaring that the appeal had abated. Then on May 22, 1970 the applicants applied u/S. 151 of the Code praying for the recall of the order dated April 27, 1970 rejecting the substitution application, for setting aside the abatement and for restoring the appeal to its original number for decision on the merits. On March 2, 1971 the learned single Judge dismissed it as misconceived. Thereafter on the same day the instant application was made before him. It prays for leave to implead the legal representatives of Duli Chand after the removal of his name from the record. It was contended before the learned single Judge that there was no period of limitation prescribed for an application u/R. 3 of Ch. X of the Rules of Court and, if at all, the residuary provision prescribing three years as the period of limitation would be attracted. Being of opinion that the question was of considerable importance, he has referred the application to a larger Bench. And so the case is now before us.

(2.) Shri B.D. Tripathi, on behalf of the legal representatives has raised a preliminary objection. It is urged that as the second appeal is not pending any longer the application is misconceived and should be rejected.

(3.) Shri V.P. Misra, on behalf of the applicants, contends that the order declaring the appeal abated is a nullity and can be ignored, that abatement arises by the automatic operation of law and that any order of the Court declaring abatement is superfluous. He urges that in law the appeal has not abated and, therefore, the substitution application now made should be considered. Secondly, he contends, even if it be assumed that the order declaring the appeal, abated can be considered as an order disposing of the memorandum of appeal, it is merely an administrative order, the judicial proceeding having come to an end by the abatement of the appeal, and an administrative order can always be recalled. Finally, he urges, the Court is competent to recall the order declaring the appeal abated in the exercise of its inherent powers.