SURAT AND ORS. Vs. BHRAGUNATH UPADHYA AND ORS.

JUDGEMENT

(1.) THE present application for substitution has been moved on behalf of respondents Nos. 2 and 3 in the aforesaid appeal for substituting Dinanath Upadhyaya as heir and legal representative of Surat Upadhyaya (appellant No. 1) and for substitution of Sudarshan Upadhyaya, Singhasan Upadhyay and Sagar Upadhyay as heirs and legal representatives of the deceased -respondent No. 1 Bhrigunath Upadhyay. The aforesaid second appeal was allowed ex parte on 11 -2 -1981 by this Court. Thereafter, an application was filed on 3rd March, 1981, under section 151 C.P.C. for recalling the aforesaid judgment and restoring the appeal to its original number. This application was moved by Sri Bhrigu Nath Upadhyay, the aforesaid deceased -respondent No. 1. The aforesaid substitution application dated 24th May, 1983, was moved on 4th July, 1983. However, before making of this application for substitution on 6th July, 1982, the aforesaid application for recalling the ex parte judgment was allowed. Then an application was moved on behalf of the appellants -respondents for declaring the order dated 6th July, 1982, as void as it was passed against the dead person, whose heirs were not brought on record. On 27th April, 1983, the said application of the appellants was allowed and the order dated 6th July, 1982 was set aside on the ground that admittedly Surat Upadhyay and Sri Bhrigunath Upadhyay both having died on their legal representatives not being brought on the record, the application dated 3rd March, 1981 moved by the respondent No. 1 should not have been allowed. Thereafter, on the 4th July, 1983, the substitution application was moved by the present applicants -respondents for the substitution of the aforesaid persons. There was contest regarding the date of death of Surat Upadhyay, the present applicants -respondents claiming him to have died on 10 -11 -1980, while appellants Nos. 2 and 3 respondents alleging him to have died on 9th April, 1981. This Court by means of order dated 13th December, 1983, that the case to the court below for recording a finding about the date of death of Surat Upadhyay. The finding was recorded by the trial court by means of order dated 6th September, 1984, holding Surat Upadhyay to have died on 9th April, 1981. Then, again on the 14th May, 1985, an order was passed by this Court again allowing the aforesaid application dated 3rd March, 1981. An order was made for restoring the aforesaid appeal to its original number. Then, another application was made on behalf of the appellants -respondents stating that the said order was passed without deciding the substitution application. Later, this Court after hearing learned counsel for the parties came to the conclusion that since the substitution application was not decided the order dated 14th May, 1985, was again recalled and it was ordered that the application dated 3rd March, 1981, for the recall of the judgment and order passed by this Court on 11th February, 1981, should be disposed of only after deciding the substitution application dated 4th July, 1983. Thereafter, the Hon'ble Mr. A. Banerji, Chief Justice, released the said case thus the present application for substitution has been placed before me for final disposal.

(2.) FROM the aforesaid facts it is clear that the present substitution application has been moved to the application dated 3rd March, 1981 made under section 151 C.P.C. According to the present applicants, the aforesaid second appeal was allowed ex parte without hearing the applicants -respondents as, in fact, there was no notice to him of the Second Appeal as notice served on him indicated wrong year and thus the Vakalatnama, which was said to have been filed by the applicants could not be placed in the present Second Appeal which resulted into ex parte decision.

(3.) LEARNED counsel for the applicants urged that when the application - on the 3rd March, 1981, was moved by the respondent No. 1 to the said appeal that appeal stood finally decided and thus the said application could not be an application in appeal and proceedings initiated on the application could only be treated to be miscellaneous proceedings. He relied on the language used in Article 120, which refers to the, legal representatives of a deceased (plaintiff or appellant) or (defendant or respondents). The expression of words in Article 120, Limitation Act, makes out limitation of ninety days and only governs proceedings in suit or in appeal and not to the miscellaneous proceedings. Reference was made in Chandradeo Pandey and others v. Sukhdeo Rai and others : AIR 1972 Alld. 4504, in which it was held that the application for substitution of heirs in a revision in an application under section 151. C.P.C. hence period of limitation provided under Article 120 is inapplicable and period of limitation would be three years as provided under Article' 137. He also relied on the case Smt. Sayeeda Begum and another v. Ashraf Husain and others : AIR 1980 M.P. 12. In that case substitution application was made to the application for restoration of suit dismissed for default it was held that Older XXII was not applicable and Article 137 -and not Article 120 would apply