M VENKATESWARLU Vs. B ULAKKI

JUDGEMENT

(1.) It appears that an appeal was filed on 14/12/1961 against the judgment and decree of the trial court. It however appeared that the sole respondent in that appeal had already died on 4/12/1961. This was revealed when summons was, attempted to be served on that respondent. The appellant. therefore, filed an application to bring his legal representatives on record. That application was filed on 22/2/1962; It was however dismissed on 10/9/1962 on the ground that no legal representative petition under such circumstances can lie. The appellant. therefore, filed two applications on 15/9/1962. I. A. No. 1084 of 1962 was for asking the condonation of delay in filing the application to amend the came title I. A. No. 1035 of 1962 was filed to amend the cause-title to the effect that, instead of the dead man's name, the names of his legal representives be permitted to be brought on record. These petitions were resisted by the petitioner before me. The learned Subordinate Judge allowed L. A. No. 1085 of 1962 but dismissed I. A. No. 1084 of 1962. While dismissing I. A. No. 1084 of 1962 however, he observed that the appeal has been filed within limitation and, therefore, no question of condoning the delay arises. I. A. No 1084 of 1962, in his opinion, therefore was unnecessary. C, R. P. No. 1555 of 1963 is against the order passed in I. A. No, 1085 of 1962 and C. R. P. No. 1554 of 1963 is against the order passed in I A. No. 1084 of 1962. I must however make it clear that both the petitions were disposed of under a common order. It is this view of the learned Subordinate Judge which is now challenged in these Revision Petitions.

(2.) When an appeal was admittedly filed against a dead man, two courses were open to the lower appellate court. It could either return the memorandum of appeal to the appellant for amending the cause-title and impleading proper parties and then represent it or allow the legal representatives of the deceased to be brought on record as respondents and not as legal representatives as the respondent bad already died before the appeal was presented by suitably amending the cause title. Obviously, the lower appellate court did not pursue the first course. The appellant, therefore, rightly filed two applications. I do not agree with the contention of the court below that I. A. No. 1084 of 1962 was unnecessary. That was an application to condone the delay caused in bringing the right persons, against whom the appellant wanted to prosecute the appeal, on record as the respondents in place of the deceased. In other words, that was an application to condone the delay in presenting the appeal in so far as these persons were concerned as the appeal would be deemed to have been instituted against them on the day when their names were brought on record as the respondents. I am unable to understand how that application, in these circumstances, becomes unnecessary. The lower court was not correct in disposing of the question of limitation so summarily. Once, it is conceded that the appeal will be deemed to have been instituted against these persons only on the day when their names were brought op record and admittedly on that date the appeal Prima facie is time barred, then the question of condoning the delay naturally arises and that is ashy I. A. No. 1084 of 1962 becomes necessary to be disposed of on merits. The lower court has not considered I. A. No. 1084 of 1962 on its merits. I however do not find any mistake in the order of allowing the cause-title to be amended under S. 153 C. P. C. The effect of that is that the present respondents would he deemed to have been brought on record as respondents and against them the appeal would be deemed to have been filed oh the date when the cause-title is so amended. The question of limitation in such appeal, therefore, will have to be decided. It is wrong to conclude that no question of limitation arises or that the application asking for condonation of delay is unnecessary. I am, therefore, of the opinion that I. A. No. 1085 of 1962 was correctly allowed and the appellant was rightly permitted to amend the cause-title. It was however wrong to dismiss I. A.No. 1084 of 1962 on the ground that it is unnecessary.

(3.) In the result, C. R. P. No 1555 of 1963 is dismissed. C. R. P. No 1554 of 1963 is allowed and the order dismissing I. A. No. 1084 of 1962 is set aside. As the application (I. A. No 1084 of 1962) has not been considered on merits, I would remit that application to the lower appellate court for its disposal on merits. The Correct course would be to keep that application (I. A, No. 1084 of 1962) along with the appeal, hear the application first and if delay is refused to be condoned, the appeal automatically becomes time-barred and it can be dismissed as time-barred. In case, however the appellate Court comes to the Conclusion that the delay can be condoned, if there are sufficient reasons then obviously, the question of limitation in the appeal would not arise. I should not be taken as having expressed any opinion on the merits on the question of limitation or in regard to I. A. No. 1084 of 1962. I and merely indicating the course which the lower appellate Court should follow. In the circumstances of the case, I make no order as to costs.