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. 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 Article 175C of Schedule II of the Limitation Act but that prescribed by Article 178.
3. The learned Judges in support of their conclusion observe:- 'It is argued that the reierence to Section 582' (of the Code of Civil Procedure), 'in Article 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 Code of Civil Procedure), but this contention is opposed to the ratio decidendi of the Full Bench decision in Lakshmi v. Sri Devi' ILR (1885) 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. Bal Joshi Sadashiv Joshi ILR (1886) 10 Bom. 663, as following the Full Bench judgment in Lakshmi v. Sri Devi.
4. The Courts had to construe in these two cases of Lakshmi v. Sri Devi and Balkrishna Gopal v. Bal Joshi Sadashiv Joshi the terms of what was at that time Article 171B of Schedule II of the Limitation Act, then in force. That Article stood as follows :-
Under Section 368 of the Code of Civil Procedure to have the legal representative of a deceased defendant made a defendant.
5. The question before the Full Bench in Lakshmi v. Sri Devi was whether the term defendant in this Article included respondent so as to make the period of limitation thereby prescribed applicable to an application by an appellant in a first appeal to have the legal representative of a deceased respondent made a respondent. And the Full Bench answered that question in the negative on the construction of certain material sections of the Code and certain Articles of Schedule II of the Limitation Act. It is also to be remarked that it was admitted in their respective judgments by some of the learned Judges who constituted that Full Bench that the absence of the term respondent in the Article in question was due to inadvertence on the part of the Legislature and was a case of defective description. To the same effect was the decision of this Court in Balkrishna Gopal v. Bal Joshi Sadashiv Joshi
6. Since these decisions the Legislature has supplied the defect and what was then Article 171B has been amended and converted into Article 175C by Section 66 of Act VII of 1888. This amended Article in terms applies to applications by an appellant in a first appeal under Section 582 of the Code of Civil Procedure, to have the legal representative of a deceased respondent made a respondent, so that the Full Bench decision of the Madras High Court in Lakshmi v. Sri Devi andthis Court's decision in Balkrishna Gopal v. Bal Joshi Sadashiv Joshi have ceased to have any force so far as first appeals are concerned.
7. The question whether the reference to Section 582 of the Code of Civil Procedure in Article 1750 of the Limitation Act, introduced by Act VII of 1888, applies to second appeals in virtue of Section 587 of the Code, did not arise and indeed it could not in either of the above mentioned decisions, the first of which was in 1885 and the other in 1886. We fail to see how the ratio decidendi of those decisions can have any application where the question is whether Article 1750 applies to second appeals. In order to find out the ratio of the Full Bench decision in Lakshmi Devi v. Sri Devi it is necessary to state what was argued there and decided. It was argued that the term defendant in the then Article 17IB included a respondent, because that Article referred in terms to Section 368 of the Code of Civil Procedure which related to plaintiff and defendant, and Section 582 of the Code incorporated into itself the provisions of Section 368 inasmuch as in terms it applied Chapter XXI of the Code to first appeals so as to include an appellant, a respondent, and an appeal in the words plaintiff, defendant, and suit respectively. The Full Bench did not accept this argument. Their reasoning was that if the Legislature had intended Article 171 B to apply to a respondent as being included in the word defendant, they would not have used the word appellant so as to distinguish it from rather than include it in, the word plaintiff in Article 171. In short) according to the Full Bench, to include a respondent in the word defendant in Article 171B would have been inconsistent with the intention of the Legislature apparent from the phraseology in Article 171 and the maxim expressio unius est exclusio alterius. That appears to us to be the ratio of the decision in Lakshmi Devi v. Sri Devi and the decisions following it.
8. But that ratio is out of place, we think, where the question is whether Article 175C of Schedule II of the Limitation Act now in force (as introduced by Act VII of 1888) applies to second appeals. Section 587 of the Code of Civil Procedure says that Chapter XLI of the Code shall, 'as far as may be,' apply to such appeals. Section 582 occurs in that Chapter and is in terms mentioned in Article 175C. The words, 'as far as may be' in Section 587 mean, so far as is feasible, and if there is nothing in the Code or any other law which expressly or by necessary implication prohibits the application of Section 582 or any other Section in Chapter XLI of the Code to a second appeal. It is not suggested that there is anything in the Code or in the Limitation Act or any other law involving such prohibition. The ground on which the Full Bench of Madras in Lakshmi v. Sri Devi proceeded is irrelevant here, because the Legislature has by Act VII of 1888 changed the phraseology of what were Article 171 and Article 171B at the time of that decision and made the language of both now quite clear so as to leave no room for the application of the ratio of that decision. Section 582 of the Civil Procedure Code regulates the procedure in appeal and the law of limitation is also a law of procedure. Both the Code and the Act being co-temporary legislation providing for procedure, must be read together just in the same way tha't, as held by the Judicial Committee of the Privy Council in Sundar Koer v. Sham Krishen (1906) L.R. 34 IndAp 21, the Transfer of Property Act and the Code of Civil Procedure must be read together, being co-temporary Acts. Accordingly Section 582, which is made applicable to second appeals by Section 587, being mentioned in Article 175C, the provisions of both must be read together and applied to such appeals. Otherwise we should have to presume that the Legislature has either through over-sight or for some deliberate purpose omitted to prescribe the same period of limitation in the case of second appeals that they have prescribed in the case of first appeals by Article 175C. The omission of the Legislature to make express mention of second appeals in Article 175C is reasonably accounted for by the fact that as Section 587 of the Code of Civil Procedure Code has made Section 582 applicable to those appeals and Section 582 was in terms referred to in Article 175C it was thought unnecessary to mention them. And it must be so seeing that so far as this question of limitation is concerned) there is no conceivable reason why the Legislature would have prescribed a shorter period in the case of first appeals and a longer in the case of second appeals, by relegating the latter to Article 178.
9. With all respect, therefore, to the learned Judges of the Madras High Court who decided Susya Pillai v. Aiyakannu Pillai ILR (1906) Mad. 529, we must dissent from that ruling and concur with the decision of the Calcutta High Court in Upendra Kumar Chakravarti v. Sham Lal Mandal ILR (1907) Cal. 1020. The conclusion we have arrived at, is, moreover, in accordance with the invariable practice of this Court to apply Article 175C to second appeals.
10. Passing to the merits of the objection raised by the respondents who re brought on the record as legal representatives of the deceased respondent, as we are unable to, come to any certain conclusion on the affidavits of the parties, the District Judge should he asked to record a finding after allowing them to give evidence on the following issues:-
1. When did the appellant become aware of the death of the deceased respondent?
2. Was he prevented by any reasonable cause from making his application to have the deceased's legal representatives made respondents in this second appeal within six months after the date of the death of the deceased respondent ?
11. Findings to be returned within two months.
12. The District Judge may himself take the evidence or direct it to be taken by the Subordinate Judge in whose Court the suit out of which this second appeal has arisen was tried and returned to the District Court with his (the Subordinate Judge's) opinion thereon.