MELA RAM Vs. AMAR NATH

JUDGEMENT

(1.) This is an application under Order 22 Rule 4, C. P. C., and it is supported by a petition under Section 5 of the Limitation Act and an affidavit. The application arises under the following circumstances. On 30-12-1952, the learned District Judge of Mandi and Chamba dismissed a suit brought by Mela Bam and others against Kanhya Lal and others. Kanhya Lal, defendant aforesaid, died on 26-11953, leaving two sons, Amar Nath and Jagan Nath. On 2-4-1953, an appeal was presented by Mela Bam and others against the judgment and decree of the District Judge. Since Kanhya Lal was dead, his sons, Amar Nath and Jagan Nath, were impleaded as respondents 1 and 2 in the memorandum of appeal. At the foot of the memorandum of appeal, a note was made that since Kanhya Lal, defendant, had died on 26-1-1953, his sons (who were his legal representatives) were impleaded as respondents 1 and 2. An office objection was raised to the impleading of Amar Nath and Jagan Nath without an application. In answer to the office objection, the appellants represented that since Kanhya Lal had died after the decision of the suit, no application was necessary. To be on the safer side, however, an application, purporting to be under Order 22, Rule 4, along with another under Section 5 of the Limitation Act supported by an affidavit, was filed by the appellants on 7-5-1953. On this office reported that it was beyond time by 11 days. While admitting the appeal, my learned predecessor made it clear that the admission was subject to objection. A preliminary date was fixed for disposal of the application under Order 22, Rule 4.

(2.) To-day, I have heard learned counsel for the parties. Sri Ved Vyas filed a memorandum of appearance for Jagan Nath.

(3.) The point for consideration is whether in a case like this, an application under Order 22, Rule 4 was necessary at all. A bare perusal of Order 22, Rule 4 makes it clear that it applies only to pending proceedings, i.e. suits or appeals. If any authority is necessary reference may be made to--'Ven-kata Narasimhan v. Konda Beddi', AIR 1951 Hyd 55 (A), where it was held that provisions of law contained in Order 22, Rule 4, Order P. C., contemplate pending proceedings. Learned counsel for the petitioners cited--'Pitamberdas v. Bhawanilal' AIB 1932 Sind 220 (B), where it was held: