SHEIKH ADAM Vs. BALAJI KRISHNAJI

JUDGEMENT

(1.) It is admitted that the respondent Krishnaji Mahadev Modak having died in January 1907. the appellant applied to this Court more than six months after the date of the respondent's death to bring on record the deceased's sons and heirs as his legal representatives. The application was, however, granted ex parte, delay having been excused, subject to objections by the said legal representatives. At the hearing of this second appeal, these representatives have in an affidavit raised the objection that the appellant became aware of the respondent's death soon after it occurred and that there are no reasonable grounds for excusing the delay in making the application.

(2.) The appellant's pleader in answer relies on the ruling of a Full Bench (consisting of three Judges) of the Madras High Court in Susya Pillai V/s. Aiyakannu Pillai (1906) L.R.R. 29 Mad. 529, in which it has been held that the period of limitation for bringing in the representative of a deceased respondent; in a second appeal is not that prescribed by Art. 175C of Schedule II of the Limitation Act but that prescribed by Art. 178.

(3.) The learned Judges in support of their conclusion observe:- "It is argued that the reierence to Section 582" (of the Civil P. C.), "in Art. 175 C," (of Schedule II of the Limitation Act), "should be held to include by implication second appeals referred to in Section 587," (of the Civil P. C.), but this contention is opposed to the ratio decidendi of the Full Bench decision in Lakshmi V/s. Sri Devi" (1885) I.L.R. 9 Mad. 1, "which has been followed by all the other High Courts." And then they cite among; other decided cases the decision in Balkrishna Gopal V/s. Bal Joshi Sadashiv Joshi (1886) I.L.R. 10 Bom. 663, as following the Full Bench judgment in Lakshmi V/s. Sri Devi.