Skip to content


Khushalo Vs. Muhammad HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad High Court
Decided On
Judge
Reported in(1888)ILR10All223
AppellantKhushalo
RespondentMuhammad HusaIn and ors.
Excerpt:
civil procedure code, sections 32, 365, 366, 367, 368, 582, 587 - death of plaintiff-respondent pending appeal--substitution of alleged legal representative on her own application--application by defendants-appellants to substitute another person as true legal representative--power of court to determine which of such persons is the true legal representative. - cantonments act[c.a. no. 41/2006]. section 346 & cantonment fund (servants rules, 1937, rules 13, 14 & 15: [h.l. gokhale, ag. cj, p.v. hardas, naresh h. patil, r.m. borde & r.m. savant, jj] jurisdiction of school tribunal constituted under maharashtra employees of private schools (conditions of service) regulations act, (3 of 1978) held, school run by the cantonment board is a primary school and it is not a school recognised by any.....john edge, kt., c.j.1. i do not see how two respondents with divergent interests can both remain upon the record, or how in that case the court's decree could be executed.2. then i say that khushalo's name should be struck out. under section 587 of the code the provisions of section 582 apply to this appeal. by reason of section 582, chapter xxi, applies to the ease and also sections 28 and 32. these sections show that the parties are in a different position in appeal from that which they occupied in the original suit, and that for the purposes of substitution of parties the defendants-appellants should be treated as plaintiffs. if i am wrong, then section 367 applies, and the court may either now itself determine who is the legal representative of the deceased plaintiff or stay.....
Judgment:

John Edge, Kt., C.J.

1. I do not see how two respondents with divergent interests can both remain upon the record, or how in that case the Court's decree could be executed.

2. Then I say that Khushalo's name should be struck out. Under Section 587 of the Code the provisions of Section 582 apply to this appeal. By reason of Section 582, Chapter XXI, applies to the ease and also Sections 28 and 32. These sections show that the parties are in a different position in appeal from that which they occupied in the original suit, and that for the purposes of substitution of parties the defendants-appellants should be treated as plaintiffs. If I am wrong, then Section 367 applies, and the Court may either now itself determine who is the legal representative of the deceased plaintiff or stay proceedings until the fact has been determined in another suit.

Mahmood, J.

3. Why should you implead any one as respondent? Does not Narain Das v. Lajja Ram I. L. R., 7 All., 693, decide that if you do not do so your appeal will not abate

4. The Full Bench in that case did not deny that we were at liberty to apply for substitution if we chose to do so. The limitation for such an application is that provided by Article 178 of the Limitation Act.

John Edge, Kt., C.J.

5. Narain Das v. Lajja Ram I. L. R., 7 All, 693, only decided that the appeal would not abate if the defendant-appellant did not apply for substitution within sixty days from the death of the plaintiff-respondent. It did not decide that the defendant-appellant could proceed with the appeal without any respondent being added. If the appeal succeeded, how and against whom could it be drawn up or executed

6. It is difficult to answer that question, having regard to the decision of the Full Bench. My chief difficulty is caused by the wording of Article 171 B of the Limitation Act, which omits all reference to the death of a respondent. The view expressed by Straight, J., in reference to that article has been concurred in by the Calcutta High Court in Udit Narain Singh v. Harogouri Prosad I. L. R., 12 Cal., 590, and by the Madras High Court in Lakshmi v. Sri Devi I. L. R., 9 Mad., 1. Section 582 of the Code does not necessarily prevent the application of Section 367 to this case. The words 'so far as may be' and 'include' (not 'mean') show that a plaintiff-respondent maybe treated either as a plaintiff or as a defendant as occasion requires. I contend, therefore, that, reading together Sections 368 and 582, we are entitled to have Sita Ram placed on the record as respondent; and that, if not, under Section 367 the Court has power to decide whether Sita Ram or Khusis the true legal representative of Dipchand.

7. Mr. C. H. Hill, for Musammat Khushalo.--Our application was made under Section 365 of the Code within the time limited. The second paragraph of Section 366, therefore, does not apply, and the Court has no power to allow any application on behalf of the defendants for adding another person as legal representative.

Mahmood, J.

8. Referred to Lakshmibai v. Balkrishna I. L. R., 4 Bom., 654.

9. The Legislature in framing Section 582 of the Code did not intend that an appellant should occupy the position of a plaintiff and a respondent that of a defendant absolutely. In Narain Das v. Lajja Ram I. L. R., 7 All., 693, the only question was whether the appeal had abated because no application was made within sixty days after the respondent's death. Everything in the judgments relating to other questions is obiter. A plaintiff does not cease to be plaintiff after an appeal has been instituted. The effect of Section 582 is not that the word 'plaintiff' is to be read out of Section 365, but that the word 'appellant' is to be read into that section when necessary. Section 367 only applies to cases arising under Section 366, that is to say, to cases where no application has been made within time by the legal representative of the deceased plaintiff. On general principles the sections relating to the death of a plaintiff ought to be held applicable to plaintiffs even after the institution of an appeal in which the plaintiff is respondent. The appeal is virtually a re-hearing. Prom beginning to end the question is whether the plaintiff's suit shall succeed or not. The appeal merely gives a second opportunity to the defendant.

Mahmood, J.

10. Take the analogy of the House of Lords, where the appeal abates upon the death of either party pending appeal, and the practice is to obtain an order of revivor. The representative of the plaintiff-respondent would not apply for revivor; having his decree, he would not be interested in making such an application. It would be made by the defendant-appellant, who wanted to get rid of the decree.

11. Here the appeal does not abate and the analogy would not hold good. The words in Section 582 'as far as may be' mean so far as may be necessary for the purposes of justice. Surely it would defeat the ends of justice to forbid the person who holds the decree of the first Court to obtain the benefit of it, and to allow the defendant-appellant who has lost in the Court below to appoint any person he pleases to support the lower Court's decree.

John Edge, Kt., C.J.

12. Supposing that we refused to allow the defendants' application and set aside the lower Court's decree, and your client turned out not to be the true legal representative of Dipchand, the real legal representative would not be bound by our decision, nor would the lower Court's decree held by the real legal representative be in any way affected. In that case, assuming the appellant to have acted under a bona fide mistake, is he to bring a fresh appeal? Such an appeal might be out of time. It comes to this: either an appellant who succeeded against a wrong respondent might get execution under Section 583, or he might lose his appeal altogether by the respondent being brought on the record against his will.

13. I contend that Section 365 applies and that, therefore, Sections 366 and 367 (which must be read together and which refer only to cases where no application under Section 365 has been made within time) do not apply; but if the Court should rule otherwise, then I ask it to determine the question at issue under Section 367.

14. The Hon. Pandit Ajudhia Nath, for the Appellants in reply.--'Section 365 does not apply. We deny that Khushalo is the 'legal representative' of the deceased. We can apply either under Section 366 or under Section 368. The word 'or' in Section 366 should be read disjunctively from the preceding words, and the second paragraph of that section is not limited to cases where no application has been made by the representative of a deceased plaintiff.

Edge, C. J., and Straight, Brodhurst, and Tyrrell, JJ.

15. In this case one Dipchand brought a suit against Khwajah Muhammad Husain and others, in which he claimed a declaration of title to a share in alleged ancestral property in mauza Pekhlani, possession and mesne profits. It is not necessary on the present occasion to consider the questions raised by the defendants in defence. Dipchand's suit was, on the 30th of June 1883, dismissed by the then Subordinate Judge of Aligarh. from that decree Dipchand appealed, and on the appeal the Officiating Additional Judge of Aligarh, on the 15th of June 1885, made a decree in favour of Dipchand for proprietary possession of the share claimed by him, for Rs. 624 profits against the defendants, with costs in both Courts, and for mesne profits from the date of the institution of the suit to the date of the delivery of possession of the share. From that decree the defendants brought an appeal under Section 584 of the Code of Civil Procedure to this Court.

16. After the appeal to this Court had been filed, Dipchand, who was the respondent, died childless. After the death of Dipchand his widow, Musammat Khushalo, was on her own application brought upon the record as the legal representative of the deceased respondent, Dipchand. Subsequently the appellants applied to the Court to have Sita Ram, the father of Dipchand, brought upon the record as the legal representative of Dipchand, alleging that Sita Ram and not Musammat Khushalo was the heir and legal representative of the deceased respondent, and contending that Sita Ram, and he only, should be on the record as the legal representative of the deceased respondent. Sita Ram has not objected, and we understand that he does not intend to object that he is not the legal representative of the deceased respondent. As it appeared to the Judges composing the Bench before which the appeal then was, and to which the application was made, that the application of the appellants raised questions of great importance upon which those Judges were not agreed, it was, with the consent of the parties, ordered that the appeal and the application of the appellants should be heard by the Pull Bench. The application of the appellants has been heard by the Full Bench, and as it raised questions to be decided preliminary to the consideration of the appeal, upon which questions the Full Bench was not agreed, we took time to consider our judgments.

17. On the part of the appellants it has been contended that as they allege that Sita Ram is the legal representative of the deceased respondent, Dipchand, and as they desire that Sita Ram should be made the respondent to the appeal in the stead of the deceased respondent, they are entitled by virtue of Sections 368 and 582 of the Code of Civil Procedure to have the Court enter the name of Sita Ram as that of the legal representative of the deceased respondent upon the record in the place of the deceased respondent and to the exclusion from the record of Musammat Khushalo, and this without the question being considered as to whether Sita Ram or Musammat Khushalo is in fact the legal representative of the deceased respondent. It is common ground that the legal representative of the deceased respondent is either Sita Ram or Musammat Khushalo, and that both of them are not legal representatives of the deceased respondent. On the part of Musammat Khushalo it has been contended that she is entitled to show that she and not Sita Ram is the legal representative, and, as such, the only person to be on the record as the legal representative of the deceased respondent; and in any event, that as her name has been entered upon the record as that of the legal representative of the deceased respondent, her name cannot now be removed from the record, and that she is entitled to be heard upon the appeal.

18. It has been contended that the question has been concluded by the ruling of the Full Bench of this Court in the case of Narain Das v. Lajja Ram, I.L.R. 7 All., 693. The point decided by the majority of the Court in that case was that the appeal of a defendant-appellant does not abate by reason only of his omission within sixty days of the death of a plaintiff-respondent to make application to the appellate Court for bringing on the record the legal representative of the deceased plaintiff respondent; or in other words, that Articles 171, 171 A and 171 B. of the second schedule of the Indian Limitation Act, 1877, do not apply to such a case. An examination of the order of reference shows that that, and that only, was the question referred to the Full Bench for decision. The judgment of Straight, J., in that case, at page 697, shows expressly what he considered, and we think rightly, to be the sole question before the Full Bench. In the course of his judgment he said: 'The whole question which we have to consider is whether, in a. case where a plaintiff-respondent has died, and the defendant-appellant has failed to make an application that the name of the plaintiff's legal representative be entered on the record as respondent in his place, the appeal in consequence of such failure abates.' It is true that in their opinions recorded in that case Petheram, C.J, and Mahmood, J., gave expression to certain obiter dicta.

Petheram, C. J.

19. Thought that the provisions of Section 368 of the Code of Civil Procedure are 'inapplicable to the case of a defendant-appellant who claims no debt or damages, but only to have a decree which has been passed against him reversed.' This expression of opinion of the learned Chief Justice may, in our opinion, be treated as obiter. He also held, and this was the question in the reference, that the word 'defendant' in Article 117 B of the second schedule of the Indian Limitation Act must be construed strictly as defendant only and is not to be read as 'including a respondent,' non obstante the language of Section 582 of the Code of Civil Procedure. On the other hand it was held by Mahmood, J., at pages 700 and 701, that 'the word 'defendant,' therefore, as it occurs in Article 171 B of the Limitation Act, must be taken to include a respondent, and there is nothing to suggest that any distinction is intended between a plaintiff-respondent and a defendant-respondent. Now there is one more consideration in favour of my view. There is nothing, either in the Civil Procedure Code or in the Limitation Act, which provides for or imposes the duty on the legal representative of a deceased respondent (whether plaintiff or defendant in the original action) to apply to the Court for having his name placed on the record in substitution for the deceased party. It is unnecessary to determine whether such an application could be entertained, and, if so, what limitation would govern such an application.'

20. The Full Bench of the High Court at Calcutta in the case of Udit Narain Singh v. Harogouri Prasad I. L. R., 12 Cal., 590, to which reference was made in the argument, decided only that the word 'defendant' in Article 171 B of the second schedule of the Indian Limitation Act does not include a respondent, and expressed the opinion that Section 582 of the Code of Civil Procedure was intended to affect only proceedings under that Code.

21. In Lakshmi v. Sri Devi I. L. R., 9 Mad., 1, the question before the Full Bench of the High Court at Madras was whether Article 171 B of the second schedule of the Indian Limitation Act applied to the case of a deceased respondent to an appeal. The questions which we have to consider are not questions which it was necessary to consider in any of the Full Bench cases to which we have referred.

22. Section 582 of the Code of Civil Procedure enacts that 'the appellate Court shall have, in appeals under this chapter, the same powers, and shall perform, as nearly as may be, the same duties, as are conferred and imposed by this Code on Courts of original jurisdiction in respect of suits instituted under chapter V; and in chapter XXI, so far as may be, the words 'plaintiff,' defendant,' and 'suit' shall be held to include an appellant, a respondent, and an appeal, respectively, in proceedings arising out of the death, marriage, or insolvency of parties to an appeal. The provisions hereinbefore contained shall apply to appeals under this chapter, so far as such provisions are applicable.'

23. The first point to be noticed is that, in appeals under chapter XLI of the Code, the appellate Court has and can 'perform, as nearly as may be, the same duties as are conferred and imposed by the Code on Courts of original jurisdiction in respect of suits instituted under chapter V,' The words which we have just quoted, unless there be something in the section to limit their application, confer and impose upon an appellate Court very wide powers-powers the conferring of which, we think, impliedly authorises, even if the words do not expressly authorise us, as an appellate Court, to decide for the purposes of the prosecution of this appeal, or to have it determined by an independent suit, whether Sita Ram or Musammat Khushalo is the legal representative of the deceased respondent as a preliminary question.

24. If the words in Section 582 'and in chapter XXI, so far as may be, the words 'plaintiff,' 'defendant,' and 'suit' shall be held to include an appellant, a respondent, and an appeal, respectively, in proceedings arising out of the death,' etc., mean or are to be read as 'provided that in chapter XXI, so far as may be, for the words 'plaintiff,' 'defendant,' and 'suit' shall be read appellant, defendant, and appeal, respectively, in proceedings arising out of the death,' etc., then undoubtedly the earlier words of the section are limited, and Section 368 of the Code is the only section which applies to the case, and with some startling possible results in cases in which a plaintiff-respondent has died pending an appeal.

25. To take a possible case, a defendant appeals against a decree passed against him. Afterwards, and before the appeal has come on for hearing, the respondent dies, and in the meantime the appellant has obtained, as here, a stay of execution. The appellant, we will assume, knows that he has no case in appeal and has appealed only to gain time. If Section 368 is the only section which applies, what is there to prevent such an appellant nominating as the legal representative of the deceased respondent a creature or friend of his with whose collusive assistance he could postpone upon one pretext or another the hearing of the appeal, and so keep the true legal representative of the deceased respondent out of the fruits of the decree which the deceased respondent had obtained below? If Section 368 alone applies, such an appellant need only make an application to the Court, specifying the name, description, and place of abode of any person whom he alleges to be the legal representative of the deceased respondent and whom he desires to be made the respondent in his stead. The actual legal representative of the deceased respondent could not, if Section 368 alone applies, get upon the record, and would not be entitled to be heard; and could not even inform the appellate Court with any effect that it was proceeding with the hearing of an appeal in which it had not before it the proper parties to the litigation. In such a case the actual legal representative of a deceased respondent might have in his hand the probate of the will in his favour of the deceased respondent granted by the very appellate Court before which the appeal was pending ready to be produced to the Court; and might be able to show by the very record of the case under appeal that it was an undisputed fact that the person nominated by the appellant was not, and could not be, the legal representative of the deceased respondent, and that he, the applicant, was the legal representative. Is the Court in such a case to add a mere dummy to the record and proceed, with the knowledge of that fact, to go through the farce of hearing and determining an appeal in which the Court is aware that the decree which it may pass can have no binding effect upon the real representative of the deceased respondent? We cannot come to the conclusion that the Legislature intended to compel a High Court, or any other Court, to waste its time in the hearing and determining of an appeal, its decree in which the Court knows, or has the means, if it may apply them, of knowing, can have no possible binding effect upon the legal representative of the deceased: respondent. We must put a reasonable interpretation upon the Act and assume that the Legislature, or those who may have been responsible for the framing of Section 582 of the Code, intended at the time when that section was framed to facilitate and not to obstruct the administration of the law and of justice. In our opinion, this Court, as the appellate Court dealing with this appeal and the application of the appellant, has the power to ascertain under the circumstances, as a preliminary question, whether Sita Ram or Musammat Khushalo is, for the purposes of the decree which it may have to pass, the legal representative of the deceased respondent.

26. If we are mistaken as to the extent of our power, it will be easy for the Legislature, in the contemplated Bill for amending the Code of Civil Procedure, to enact that an appellate Court must, in the case of the death of a respondent, bring upon the record, as the representative of such deceased respondent, any person who does not object and who is nominated by the appellant, and such person only, notwithstanding that it appears to it that such person is not, and cannot be, the legal representative of the deceased respondent, and notwithstanding that the actual legal representative of the deceased respondent desires to be brought upon the record to protect his interests under the decree appealed against. * Act VII of 1888 ('An Act to amend the Code of Civil Procedure, the Indian. Registration Act, 1877, and the Indian Limitation Act, 1877') received the assent of the Governor-General on the 23rd March 1888, arid will come into force on the 1st July 1888. Section 32(3) provides as follows: 'To Section 368 the following shall be added, namely: The legal representative of a deceased defendant may apply to have himself made a defendant in place of the deceased defendant, and the provisions of this section, so far as they are applicable, shall apply to the application and to the proceedings and consequences ensuing thereon.' Section 53 (1) provides as follows: 'In Section 582, for the words 'the words plaintiff, defendant, and suit shall be held that include an appellant, a respondent, and an appeal, respectively the following shall be substituted, namely, the word plaintiff shall be held to include a plaintiff-appellant or defendant-appellant, the word defendant a plaintiff-respondent or defendant-respondent, and the word suit an appeal.'' Probably such a question as the present could not have arisen if the powers which an appellate Court should exercise had been in the Code specifically dealt with and not by reference.

27. It has been suggested on the authority of the case of Athiappa v. Ayanna I. L. R., 8 Mad., 390, and our brother Mahmood so considers, that Section 32 of the Code of Civil Procedure would apply to this case. We may say, with all deference to the opinion of our brother Mahmood, that in our judgment Section 32 does not apply; and if it does apply, then that it is the duty of the Court to decide whether Sita Ram or Musammat Khushalo is the legal representative of the deceased respondent. The material part of that section, so far as this question is concerned, is as follows:

And the Court may at any time, either upon or without such application, and on such terms as the Court thinks just, order that any plaintiff be made a defendant or that any defendant be made a plaintiff, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added.

28. It could not be suggested that under that section, if it applied, a person who is not the legal representative of the deceased respondent is 'a person who ought to have been joined' as the legal representative of the deceased respondent. Nor, in our opinion, could such a person who has no interest whatsoever, representative or otherwise, in the suit or in the appeal, be said to be in any sense' a person whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit' or in the appeal. If it be contended that such a person is a necessary party to the appeal, it can only be on the ground that one of the questions which the appellate Court has to adjudicate upon is as to whether or not he is, as in this ease, the legal representative of the deceased respondent. If that were a question to be adjudicated upon and settled in the appeal, it would be the duty of the Court to decide the question, and not, as we infer is our brother Mahmood's opinion, to leave it undecided. To leave it undecided would be, in our opinion, to show that such a person was not a necessary party to the appeal.

29. If Sita Ram is to be brought on the record as the legal representative of the deceased respondent, and if Musammat Khushalo is to remain on the record also as the legal representative of the deceased respondent, which of them is entitled to be heard in support of the decree below? As the deceased respondent has admittedly only one legal representative, on what principle or rule of practice should we hear two persons as his legal representatives in argument on the appeal? And further, what is the decree which the Court should make in case we dismiss the appeal? The decree in such a case, if we are not to ascertain which of those two persons is the legal representative of the deceased respondent, would be dismissed with costs to the respondents. It would be unjust to dismiss it with a double set of costs--one set for the respondent who was not brought upon the record at the instance or with the consent of the appellants, and the other set for the respondent who was brought on the record on the application of the appellants. If the appeal be one which ought to be dismissed with costs, the only course for the Court to adopt would be to dismiss the appeal with one set of costs to the respondents; and in that event the real legal representative, instead of getting one full set of costs, would only get a share in the full set. It cannot be doubted on the authorities that the decree to be executed would be the decree of this Court. How could it be executed? It may be doubted whether Section 231 of the Code of Civil Procedure was intended to apply to such case. If Sita Ram be the mere creature of the appellants--we do not say that he is--he would not join in an application for the execution of the decree, nor would he apply for the execution of: the decree for the benefit of himself and Musammat Khushalo. If Musammat Khushalo applied for execution of the decree for the benefit of herself and Sita Ram, what would be the interests of Sita Ram which it would be necessary for the Court by its order under Section 231 to protect? They would in fact be the interests not of Sita Ram but of the appellants, and the protecting of the interests of Sita Ram would in effect deprive Musammat Khushalo of a moiety of the costs to which, if she be the legal representative of the deceased respondent she would be entitled. Section 32 of the Code of Civil Procedure was considered by a Bench of this Court in the case of Har Narain Singh v. Kharag Singh I. L. R., 9 All., 447, and the corresponding section of Act X of 1877 was considered by a Bench of this Court in the case of Naraini Kuar v. Durjan Kuar I. L. R., 2 All., 738. We dissent from the view taken by the High Court at Madras in Athiappa v. Ayanna I. L. R., 8 Mad., 300, and are of opinion that Section 32 of the Code does not apply to a case like this. We have pointed out what might be the result of holding that we have no power to have determined in another suit the question of which of these two persons, Sita Ram and Musammat Khushalo, is the legal representative of the deceased respondent, or to decide that question for the purposes of the prosecution of this appeal.

30. Different considerations arise in the case of the death of a defendant before decree in the Court of First Instance. A person does not as a rule bring an action against another person unless he has, or believes he has, a cause of action; and in the case of the death of his defendant before decree, he would not, except through mistake, nominate, under Section 368 of the Code, as the legal representative of his deceased defendant, a person who did not represent his deceased defendant or his estate. If he did, no possible harm could come to the real legal representative of the deceased defendant, except possibly having to show in subsequent proceedings that he was the legal representative. A plaintiff would make such an application at his own risk, and he may be safely left to put upon the record his nominee as the legal representative of the deceased defendant, But the case is otherwise when a person claiming to be the real legal representative of a deceased respondent desires to be put on the record to protect the decree obtained by the deceased respondent, and to obtain the fruits of that decree as speedily as possible. If a judgment-debtor dies before the decree has been fully executed, the holder of the decree must, under Section 234 of the Code, 'apply to the Court which passed it to execute the same against the legal representative of the deceased.' In that case the decree-holder would have to satisfy the Court, either by proof or admission, that the person whom he proposed to proceed against was the legal representative of the deceased judgment; debtor. An appellant would have no greater difficulty in ascertaining who is the legal representative of the deceased respondent and bringing him before the Court than would a decree-holder have in ascertaining who was the legal representative of his deceased judgment-debtor and bringing him before the Court. Sections 365, 366 and 367 of the Code may, in our opinion, having regard to the words 'as nearly as may be' and 'as far as may be' in Section 582, be held to be applicable and be applied, in any event analogically, to this case to enable the real legal representative of the deceased respondent to get or be brought upon the record, and to enable this Court to ascertain whether Sita Ram or Musammat Khushalo is the legal representative of the deceased respondent, and, as such, entitled to be heard in support of the decree obtained below. Assuming for the moment that there are no words in Section 582 to support the view we hold and have expressed, we would be prepared to hold that there must be an inherent power in a Court of record to ascertain whether or not it has before it the proper parties to a first or second appeal if the question be substantially raised. It is clear to us that when a respondent to an appeal has died, there can be no hearing and determining of the appeal that can have a binding effect upon the legal representative of such deceased respondent if such legal representative be excluded from the record without having been heard to show, if he can, that he is the legal representative; and it is equally clear to us that an appellate Court is not bound to hear and determine an appeal in which it has not on the record a respondent. In the latter case, it would not be contended that any decree which might be passed, except one dismissing the appeal, would be other than fruitless. So far as the legal representative of a deceased respondent or the estate of a deceased respondent would be concerned, we can see no difference between a case in which the legal representative who applies to be put on the record is excluded from the record without having been heard and one in which there is no respondent in appeal on the record. We may observe that the High Court at Bombay in Lakshmibai v. Balkrishna I. L. R., 4 Bom., 654, and the High Court at Calcutta in Rajmoonee Dabee v. Chunder Kant Sandel I. L. R., 8 Cal., 440; 10 Cal., L. R., 437, considered that they might in those cases apply the principle of analogy. We have had the opportunity of considering the draft judgment of our brother Mahmood and the cases referred to in it. We regret that we cannot agree with that judgment. In our opinion we can and should, either before or at the hearing of this appeal and as a preliminary question, ascertain and determine for the purposes of the prosecution of this appeal the question as to whether Sita Ram or Musammat Khushalo is the legal representative of the deceased respondent, and should act accordingly.

Mahmood, J.

31. The preliminary question which requires determination in this case has arisen from the following facts: On the 20th of December 1881, one Dipchand sued the present defendants-appellants for possession of certain zamindari shares together with mesne profits. The suit was dismissed by the Court of First Instance on the 30th June 1883, and from that decree an appeal having been preferred by Dipchand, the Lower Appellate Court, reversing the decree of the first Court, decreed the claim on the 15th June 1885. From that decree the defendants preferred this appeal on the 9th December 1885, and the appeal was admitted and is still pending in this Court. On or about the 5th May 1886 the plaintiff-respondent died childless, leaving his father, Sita Ram, and a widow, Musammat Khushalo, and it does not appear whether there is any other person claiming to be the legal representative of the deceased. On the 30th June 1886, an application was presented to this Court by Musammat Khushalo, claiming to be the legal representative of the deceased and praying that her name might be substituted as respondent to the appeal, and this prayer was granted by order of my brother Straight on the 17th July 1886. On the 2nd July 1886, an application was made on behalf of the defendants-appellants, stating that the respondent, Dipchand, died childless on or after the 5th May 1886, and that, so far as the defendants-appellants (petitioners) were aware, the sole heir of the deceased was his father, Sita Ram, and praying that his name might, therefore, be substituted for the deceased as respondent to this appeal. This application has not yet been granted, and has given rise to one of the points which require determination in this case. The appeal originally came on for hearing before a Division Bench of the Court consisting of Oldfield, J., and myself, and, for the reasons stated in the order of 30th July 1886, the Bench referred the case to the Full Bench for consideration of the legal effect of Dipchand's death as to the question whether the cause of action survived in favour of his legal representative. The question was decided in the affirmative by the Full Bench, and the appeal coming on for hearing before the learned Chief Justice and myself, it was contended on behalf of the defendants-appellants that Musammat Khushalo had been wrongly substituted as respondent to the appeal, and that the proper person who should have been substituted as the legal representative of the deceased Dipchand was his father, Sita Ram, whom the defendants-appellants had by this application sought to implead as respondent to the appeal. In view of the points raised by this contention, the learned Chief Justice, by his order of the 25th March 1887, directed that the case was to be heard by a Full Bench of this Court. The case has accordingly been heard by the whole Court so far as the preliminary question is concerned, and in dealing with that question it is necessary with reference to the arguments addressed to us at the bar, to consider the following points: (1) Whether the order of 17th July 1886, whereby Musammat Khushalo's name was brought upon the record as the legal representative of the deceased plaintiff-respondent, Dipchand, can be interfered with by us at this stage. (2) If so, Whether she has been rightly brought upon the record as such representative, and should occupy that position for the purposes of this appeal, notwithstanding the objection of the defendants-appellants. (3) Whether the defendants-appellants are either required; by law or entitled to make the application whereby they pray that the name of Sita Ram may be brought upon the record as the sole legal representative of the deceased plaintiff-respondent, Dipchand. (4) Whether both Musammat Khushalo and Sita Ram should be impleaded as respondents to this appeal. (5) Whether the law requires that, as a condition precedent to the further hearing of the appeal, the Court should decide the question whether Musammat Khushalo or Sita Ram is the true representative of the deceased plaintiff-respondent, Dipchand.

32. As to the first of these points, it is enough to say that the order of the 17th July 1886, whereby Musammat Khushalo was substituted for the deceased Dipchand as plaintiff-respondent, was passed ex parte by a single Judge, and that the ratio decidendi upon which the Full Bench ruling of this Court in Dubey Sahai v. Ganeshi Lal I. L. R., 1 All., 34, proceeded applies to this case, and that it is, therefore, open to us, as the Bench required to dispose of the appeal, to consider and decide whether the lady has been properly brought upon the record. The remaining four points as enunciated by me can be conveniently dealt with together, because they form elements of one and the same question and require consideration of the same portions of the Civil Procedure Code. That question is, whether, for the purposes of the array of the parties incident upon the death of either of the parties to an appeal, the provisions of Section 582 are such as require us to apply the provisions of Chapter XXI of the Code, regardless of the position which either party held in the Court of First Instance--that is, regardless of the question whether the party was plaintiff or defendant in the original suit. I confess that in considering this question as a member of the Full Bench of this Court, my difficulty does not arise so much out of the provisions of the Civil Procedure Code itself as from the conflicting state of the case-law upon the subject, and this circumstance renders it necessary for me to consider the exact effect and bearing of the various rulings which were cited and relied upon at the hearing of this case, with reference to the changes which Section 582 of the Civil Procedure Code has undergone since it first appeared in the Code of 1877. The section as it originally appeared in the Code of 1877 ran as follows: 'The appellate Court shall have the same powers in appeals under this chapter as are vested by the Code in Courts of original jurisdiction in respect of suits instituted under Chapter V. The provisions hereinbefore contained shall apply to appeals under this chapter so far as such provisions are applicable.' By Section 88 of Act XII of 1879 the following words were added to the first paragraph of the section: 'And in Sections 363 and 365 the word 'plaintiff' shall be held to include an 'appellant.'' Whilst the section stood thus, the Calcutta High Court in Rajmonee Dabee v. Chunder Kant Sandel, I.L.R., 8 Cal., 440; 10 Cal., L.R., 437, held that, notwithstanding that Section 582 of the Code of Civil Procedure does not expressly direct that the word 'plaintiff' occurring in Section 366 shall be held to include an 'appellant,' yet the power conferred by Section 366 on the Court of original jurisdiction to award costs against the estate of a deceased plaintiff may by analogy be taken to be conferred on the appellate Court. And in laying down this rule the learned Judges of the Calcutta High Court followed the ruling of the Bombay High Court in Lakshmibai v. Balkrishna I. L. R., 4 Bom., 654, in which, with reference to Sections 363, 365, 368, and 582 of the Code of 1877, it was held that a procedure analogous to that laid down in Section 368 of the Civil Procedure Code (Act X of 1877) in respect to the death of a defendant must be applied in the case of the death of a respondent; and that, therefore, where a respondent dies during the pendency of an appeal, it is for the appellant to take the initiative, and he is at liberty to select one or more persons to defend the appeal; and no person other than the person so selected, has a right to force himself into the proceedings and to claim to have his name entered as representative of the deceased respondent against the appellant's consent. It was also held in the same case that persons so introduced on the record may or may not be the real representatives of the deceased respondent; but the merits of their claim to be such, on the ground of any right or status, such as that of adoption, is immaterial to the determination of the appeal.

33. Both these cases are strong authority for showing that, even as the law then stood, a defendant-appellant was dealt with as plaintiff for the purposes of the array of parties in proceedings arising but of death, &c;, although Section 366 was not specifically referred to in Section 582 of the Code as it then stood. In the Calcutta case just cited Mr. Justice Mitter entertained no doubts in the matter, but Garth, C.J., in delivering his judgment in the case, went on to say:

Section 582 of the Code has provided that in Sections 363 and 365 the word 'plaintiff' shall be held to include an 'appellant.' If the provision had been made with regard to Section 366, all difficulty in this case would have been removed; but the express mention of Sections 363 and 365 and the omission of Section 366 would rather lead to the supposition that the Legislature did not intend a respondent to have his costs under such circumstances. As my learned brother, however, is disposed to put a more liberal interpretation upon Section 582, and as the view which he takes appears to be supported by the Bombay High Court in the case to which he has referred, I shall not differ from him on this occasion, more especially as, in my opinion, the justice of the case is entirely in accordance with that view. We trust that the omission, if it is one, may be supplied in the Bill to amend the Civil Procedure Code, which is now before the Legislative Council.

34. The Bill to which the remarks referred was the one which on passing has become the present Civil Procedure Code of 1882, and it was probably in consequence of this suggestion that Section 582 was amended. The words inserted by Section 88 of Act XII of 1879, as addition to the first para, of Section 582 of the Code were cut out and the following words substituted therefor: 'And in Chapter XXI, so far as may be, the words 'plaintiff,' 'defendant,' and 'suit' shall be held to include an appellant, a respondent, and an appeal, respectively, in proceedings arising out of the death, marriage, or insolvency of parties to an appeal.' The main question, therefore, before us is, what is the effect of these alterations upon the facts of a case such as this? In other words, the question is whether the defendants-appellants in this case are or are not in exactly in the same position as to the array of parties as they would have been if they had been plaintiffs in the original suit and the death of the defendant had occurred during the pendency of the suit.

35. I should have had no difficulty in answering this question in the affirmative but for the fact that in the Full Bench ruling of this Court, I.L.R., 7 All., 693, in Narain Das v. Lajja Ram, in which I had the misfortune of being in the minority of one, there is a great deal in the ratio decidendi adopted by the majority of the Court which clashes with my views upon this point. The general effect of the view adopted by the majority of the Court in that case is that, even for the purposes of the array of parties to an appeal arising out of the incident of the death of one of the parties, a plaintiff continues to be a plaintiff and a defendant a defendant for the purposes of chapter XXI of the Civil Procedure Code, notwithstanding Section 582 of the Code of 1882. In other words, the effect of the ratio decidendi of that ruling is to hold, as I pointed out in Rameshar Singh v. Bisheshar Singh I. L. R., 7 All., 734, and again in Grant v. The Oudh and Rohilkhand Railway Company, Weekly Notes, 1886, p. 90, that it is not the duty of a defendant-appellant to implead any one as respondent upon the death of a plaintiff-respondent. In the last-mentioned case (which has not been reported in the authorised reports) I Said: 'Cases have occurred within my own experience, in which, during specially unhealthy seasons, both the appellant and the respondent have died, and in which there is some difficulty in knowing how to act. In this case the difficulty would have been considerably enhanced if the plaintiff were not also the applicant and if the defendant had not occupied the same defensive position before us as he occupied in the Court below. This would be the result of the ruling of the Full Bench in Narain Das v. Lajja Ram I. L. R., 7 All., 693, to which I was a party, but in which T had the misfortune to differ from the late learned Chief Justice and my other learned colleagues regarding the interpretation to be placed upon a clause of Section 582, Civil Procedure Code, which happens to have been drafted and submitted by myself to the Legislature word for word as it now stands. The effect of the judgment of the majority of the Court in that case, as I pointed out in Rameshar Singh v. Bisheshar Singh I. L. R., 7 All., 734, is that the appeal by a defendant is absolutely free from abatement, if he chooses to decline to implead any person to represent the deceased plaintiff-respondent, and the appeal would go on for ever upon our file if no one volunteered as representative of the deceased plaintiff-respondent. Such is not the interpretation which the authors of the clause either intended or could accept; and I still think, with due deference to the Pull Bench ruling of the majority of the Court, that the ruling will probably have to be reconsidered as soon as we have a case where the defendant-appellant neglects-- or, to put the point more strongly--deliberately declines to implead any person as representing a deceased plaintiff-respondent, and the representative of the latter makes no endeavours to appear. And I may respectfully say that I still think that just as it is the duty of a defendant against whom a decree is passed when filing his appeal to implead the plaintiff as respondent, so it is his duty to implead the representatives of the plaintiff who dies before the appeal is instituted, for it is obvious that in such a case no appeal could be instituted ex parte, and no Court would admit an appeal which did not name any respondent at all or named a respondent who was admittedly no longer alive. Nor am I aware of any juristic reason why this duty of impleading the opposite party imposed upon the appellant should vanish simply because the plaintiff-respondent has died after and not before the appeal is preferred. Notwithstanding the high authority of Petheram, C. J., and the learned Judges who followed him, I humbly venture to think that the views expressed by me are in accord with the practice of the House of Lords in appeals where such questions arise, if not also of the other Courts of appeal in England itself. In the absence of books of reference on this subject in the library of this Court I have not been able to study the matter, and I have indulged in these obiter dicta principally to place upon record the views I entertain in the hope that when the Legislature thinks fit to amend the Civil Procedure Code, they may perhaps take these observations into consideration.

36. It is just possible that it was in consequence of these observations, as also the remarks which I made in my dissenting judgment, in the Full Bench case of Narain Das v. Lajja Ram I. L. R., 7 All, 693, the Legislature in accepting Bill No. II of 1887 (now pending before the Legislature) to amend the Code of Civil Procedure, proposed in Section 48 of the Bill to alter the language of Section 582 of the Code in the following manner: 'In Section 582, for the words the words 'plaintiff,' 'defendant,' and 'suit' shall be held to include an appellant, a respondent, and an appeal, respectively, the following shall be substituted, namely, the word 'plaintiff' shall be held to include a plaintiff-appellant or defendant-appellant, the word 'defendant' a plaintiff-respondent or defendant-respondent, and the word 'suit' an appeal,' see Act VII of 1888, Section 53 (1).

37. I have quoted this proposed section, not because it can be utilised as a means of interpreting the Code as it now stands, but because it formulates in specific language the law as it already stands, subject of course to such difficulties as have arisen Out of the case-law. Some of the cases which have given rise to the difficulties have already been cited by me, arid although have no intention of repeating what I said in my dissenting judgment in the case of Narain Das v. Lajja Ram I. L. R., 7 All., 693, I shall deal with that case as the central point from which this Court sitting in Full Bench should view the rulings of the other High Courts bearing upon the point now before us.

38. I have already mentioned what the Bombay High Court ruled in Lakshmibai v. Balkrishna I. L. R., 4 Bom., 654, with reference to the Code of 1877; and I may add that a similar rule was laid down by that Court under the present Code in Bat J aver v. Hathi Sing Kesri Sing I. L. R., 9 Bom., 56, where it was held that, under Section 368 of the Civil Procedure Code (XIV of 1882), a plaintiff may have the representatives of a deceased sole defendant placed on the record, so that ho may continue his suit against them; but there is no section which allows the representatives of a sole defendant who has died to be placed on the record at their own request; that consequently Section 582 gives no authority to a civil Court to place on the record at their own request the representatives of a deceased sole respondent, and that such an application cannot be entertained. It is clear that both these cases are not only consistent with what I said in the case of Narain Das v. Lajja Ram I. L. R., 7 All., 693, but go somewhat too far according to my view of the law. The next case which I wish to cite is Soshi Bhusan Chand v. Grish Chunder Taluqdar I. L. R., 11 Cal., 694, where the Calcutta High Court laid down a rule wholly in accord with what I said in the Full Bench case of his Court, because the learned Judges (Field and Beverley, JJ.) held that, having regard to Section 3 of Act XIV of 1882, it is clear that the word 'Code' in Schedule ii, Article 171 B of Act XIV of 1877, applies to the present Code of Civil Procedure (Act XIV of 1882), and that, therefore, the word 'defendant' in Section 368 of that Code when read with Section 582 must be held to include 'respondent.' This view was, however, repudiated by the Full Bench of the same Court in Udit Narain Singh v. Harogouri Prosad I. L. R., 12 Cal., 590, and in doing so the learned Judges followed the ruling of the majority of this Court in the Full Bench case of Narain Das v. Lajja Ram I. L. R., 7 All., 698, though judging from the report of the case I cannot but feel, with due deference, that the attention of the learned Judges was not called to my dissentient judgment. Nor can I help feeling that the learned Judges of the Full Bench of the Madras High Court in dealing with a similar question in Lakshrni v. Sri Devi I. L. R., 9 Mad., 1, had not directed their attention to the reasons upon which my humble judgment in Narain Das v. Lajja Ram I. L. R., 7 All., 698, proceeded; and I make this special reference to what I said at pp. 700 and 701 of the authorised report.

39. It is of course clear that like the Full Bench case of this Court in Narain Das v. Lajja Ram I. L. R., 7 All., 698, some of the cases before the other High Courts, which I have just cited, turned upon the interpretation of a clause of the Limitation Act (XV of 1877) as amended by Section 108 of a later statute, namely, Act XII of 1879. I suppose no one who has studied the rulings in those cases will deny that in interpreting Section 582 of the present Code of Civil Procedure (Act XIV of 1882), they have been materially influenced by the terms of an earlier statute, namely, the Limitation Act (XV of 1877) as amended by Act XII of 1879. I have cited these cases out of deference to the learned Judges who delivered judgments in those cases in this Court, as also in the High Courts of Calcutta and Madras, though I have felt, and still feel, very great difficulty in either regarding the statutes of limitation as in pari material with the Civil Procedure Code, or in holding that a later statute, such as this present Civil Procedure Code, is to be interpreted and governed by an earlier statute which deals with a different department of adjective law.

40. Having so far dealt with the most important cases bearing upon the question now before us, I wish to state what seems to me to be a simple proposition of law, consistent as it is with juristic reasoning. We all know that the maxim ubi jus ibi remedium is a fundamental principle of our law, and that primarily it applies only to causes of action which have to be dealt with by Courts of original jurisdiction, that is, Courts of First Instance. But the principle upon which the maxim is based is applicable as much to Courts of appeal as it is to Courts of First Instance, that is to say, that whilst in the Court of First Instance the plaintiff complains of an injury ante litem motam, in a Court of appeal the main complaint of the appellant is that injury has been done to him, Dot only by the act of the opposite party, but by a wrongful exercise of jurisdiction by the lower Court. As a matter of juristic reasoning, there is no substantial difference between the position of a plaintiff in the original Court and that of an appellant before the Court of appeal, whether such appellant was plaintiff or defendant in the original Court. The juristic reason is simple, namely, that the maxim omnia praesumuntur rite esse acta is comprehensive enough to include not only acts ante litem motam, but also the acts of a Court. There is, therefore, no more reason to presume that a defendant has committed an injury than there is to presume that a plaintiff-respondent has obtained a wrong decree because of the error of the lower Court. In both cases the presumption of law is that, till the contrary is proved, acts which have actually occurred, whether done by a party to the litigation or by a Court of Justice, were rightly done. And if I am right so far, for whom is it in a case of appeal to show that the decree of the lower Court was wrongly passed? Surely it is not for him who has obtained a judgment in his favour, but for him who impugns that judgment to show that the judgment is wrong; and I find it extremely difficult to conceive how an appellant can be exonerated from this duty by dint of the simple fact that he happened to be defendant in the original Court. And if this is so I fail to see any reason, either in jurisprudence or law, why a defendant-appellant in the Court of appeal should be placed upon a footing different from that of a plaintiff in the original Court, with reference to the array of parties, for the purposes of obtaining his remedy. Such remedy in the Court of First Instance would of course be obtaining a decree or an injunction, and in the Court of appeal the remedy aimed at would be the reversal of a judgment, decree, or injunction, for, whichever the case may involve, the principle remains that omnia praesumuntur rite esse acta.

41. Now, dealing with this point somewhat concretely, I suppose nobody would deny that a defendant against whom a decree has been passed is the person who must complain of the decree if he chooses to impugn it. Nor do I think any one would deny that under our Code of Civil Procedure it is not the duty of the successful plaintiff, but of the defendant, to implead some one as a respondent to the appeal. But the successful plaintiff may have died before the appeal it filed. Whose duty then would it be to bring the proper parties before the Court of appeal to enable that Court to adjudicate upon the appeal? Surely it would not be the duty of the successful plaintiff to impugn the judgment which is in his favour. And if this is so, the party who could or would appeal would in the case supposed be the defendant who had been unsuccessful in the Court below. It is accepted as a sound principle of adjudication by all civilised nations that audi alteram partem, and how is the, appellate Court to hear the appeal of a defendant-appellant without hearing the other side? And how is it to hear the other side if the defendant-appellant either names a dead person (a plaintiff-respondent) or does not name any living person as the legal representative of the deceased

42. It seems to me, therefore, to be the undoubted duty of the appellant, be he plaintiff or defendant in the original action, to implead some one as respondent, and, if the opposite party is dead, to implead some one as the legal representative of the deceased. Such no doubt would be the case if a plaintiff-respondent died before the filing of the appeal by the defendant-appellant. And for what reason can this duty vanish if the death of the plain tiff-respondent takes place not before the institution of the appeal but during the period of its pendency? The effect of the ratio decidendi of the ruling of the Full Bench of this Court in Narain Das v. Lajja Ram I. L. R., 7 All., 693, can suggest only one answer, namely, that the appeal must remain pending for ever, or at least till so long as the legal representatives of a deceased plaintiff-respondent do not apply to have their names substituted as respondents. To the question arising from such a state of things, the ruling of the Bombay High Court in Lakshmibai v, Balkrishna I. L. R., 4 Bom., 654, and in Bai Javer v. Hathi Sing Kesri Sing I. L. R., 9 Bom., 56, would furnish the answer that the legal representatives of the deceased plaintiff-respondent have no locus standi to make an application to be substituted as representatives of the deceased; and the Full Bench ruling of the majority of this Court, as also the Full Bench rulings of the Calcutta High Court and Madras High Court, would lead to the conclusion that a defendant-appellant can choose his own time for making an application to implead the legal representatives of a deceased plaintiff-respondent, the appeal in the meantime being free from liability to abatement.

43. I confess that I find it extremely difficult to hold that such was the intention of the Legislature. I make this observation, of course, with profound respect for the rulings which I have cited; and with equally profound respect I may observe that the whole difficulty in connection with the array of parties has arisen out of a misapprehension of the juristic principles upon which our Code of Civil Procedure is based. A due consultation of the various parts and chapters into which the Code is divided will show that the essential rules governing the procedure of the Courts of First Instance form the body of the statute, and those same provisions, mutatis mutandis, have been rendered applicable, not only to the first appellate Court, not only to the second appellate Court, but also to the Courts exercising civil jurisdiction in miscellaneous cases. Such, stating the matter briefly, is the effect of Sections 582, 587, and 647 of the Code; and speaking for myself, I cannot conceive how a workable Code could be framed upon better principles. The Code is, as we all know, the outcome of the labours of one of our most eminent jurists, Lord Hobhouse, now one of the Lords of the Privy Council, with the co-operation and assistance of another great jurist, Mr. Whitley Stokes, who, in the position of Law Member of the Legislature, is no doubt mainly responsible for Section 582 of the Code of 1882 as it now stands. The Code so framed, is, to my mind, perfectly clear, and if difficulties have arisen in this Court, as also in the other High Courts, over the matter now before us, it is due, as I humbly and respectfully think, to some misapprehension of the method upon which the Code has been framed. I have said so much because the policy upon which the Legislature has framed Section 582 of the Code cannot be fully realised, unless it is accepted that, as a pure matter of codification and drafting statutes, it would be nothing more nor less than clumsy to reproduce or repeat in the appellate chapters, or in the chapter relating to miscellaneous proceedings, the provisions of the procedure (sic) well defined and accurately expressed in the earlier chapters of the Code, and which provisions, as matters ad litis ordinationem, are as suitable for appeals and miscellaneous proceedings as for regular original suits.

44. This is in effect what I said in one of the cases to which I have already referred; and since I am sitting again as a member of the Full Bench of this Court, which can overrule the ratio decidendi of the Full Bench ruling in Narain Das v. Lajja Ram I. L. R., 7 All., 693, I must, with due deference to the majority of the Courts as then constituted, repeat what I held in that case, namely, that the object of Section 582 of the Civil Procedure Code is to obviate the necessity of repeating the provisions of Chapter XXI, as also to make them applicable to appeals, and the words 'appellant' and 'respondent,' as used in the section, include both plaintiffs and defendants in an appeal; that the whole Code maintains the analogy between the position of a respondent and that of a defendant for the purposes of being impleaded and brought before the Court; that chapter XXI applies to cases where a plaintiff-respondent has died; and that in such a case, and where no application has been made within the period prescribed therefor, praying that the legal representatives of the deceased be made parties in his place, the appeal abates.

45. To this view I still adhere; and I may respectfully say that I do so partly because in the reports of the cases already cited by me laying down a different rule, I have failed to trace any attempt to meet the reasons which my judgment in the case just cited relied upon. Holding these views still, I need only say that not only Section 582 but the provisions of the whole Code of Civil Procedure far from presenting difficulties of interpretation, become wholly intelligible and consistent when Section 582 is read in the sense in which I respectfully think it was framed. That sense is best enunciated in the second paragraph of the present Bill to amend the Code, namely, that 'the word plaintiff' shall be held to include a plaintiff-appellant or defendant-appellant, the word 'defendant' plaintiff-respondent or defendant-respondent, and the word 'suit' an appeal.'

46. In this view of the matter, the points before us become very simple, because, for the purposes of the array of the parties, Section 582 read with Section 587 of the Civil Procedure Code renders the provisions of chapter XXI of the Code relating to incidental proceedings arising from the death of parties applicable to this case in such a manner that the appellant, whether plaintiff or defendant in the original Court, must be dealt with as plaintiff for the purpose to which that chapter relates. And if I am right so far, I need only refer to the provision of that chapter for stating my view of the law. Section 368 which occurs in that chapter lays down inter alia that in case of the death of one of several defendants, or of the sole defendant, 'the plaintiff may make an application to the Court specifying the name, description, and place of abode of any person whom he alleges to be the legal representative of the deceased defendant, and whom he desires to be made the defendant in his stead.' The section further goes on to say that 'the Court shall thereupon enter the name of such representative on the record in the place of such defendant, and shall issue a summons to such representative to appear on a day to be therein mentioned to defend the suit; and the case shall thereupon proceed in the same manner as if such representative had originally been made a defendant and had been a party to the former proceedings in the suit, provided that the person so made defendant may object that he is not the legal representative of the deceased defendant, or may make any defence appropriate to his character as such representative.'

47. In the present case, whilst the defendants-appellants insist upon impleading Sita Ram as the legal representative of the deceased, Musammat Khushalo, as the widow of the deceased, far from objecting to be impleaded as respondent, has applied to be so impleaded, though the application is objected to by the defendants-appellants. Now, in dealing with such a state of things, the law ceases to present any difficulties if we interpret Section 368 of the Code in the sense in which Section 582 of the Code intends that section to be interpreted. In other words, the provisions as to the impleading of defendants become applicable to the impleading of respondents, whether such respondents were plaintiffs or defendants in the original suit. And, indeed, I am prepared to go further and say that reading Section 582 of the Code as a whole, the section confers upon the appellate Court all the powers conferred upon the Courts of original jurisdiction in connection with such matters; and those extensive powers have also been conferred upon the Courts of second appeal by Section 587 of the Code. Thus not only Section 368 of the Code becomes applicable to this case, but also all the other sections of the Code as to the array of the parties, such as Section 32.

48. To put the matter more concretely, the defendants-appellants must in this case be treated as plaintiffs and the plaintiff-respondent Dipchand, deceased, as a defendant. On this hypothesis there is no question of the death of a plaintiff in this case, and therefore the provisions of Sections 363, 364, 365, 366, and 367 have no application. Upon the same hypothesis, what has really occurred is that a sole 'defendant' has died, and a dispute has arisen as to who is his legal representative for the purposes of the litigation. The defendants-appellants (who must be regarded as plaintiffs) state that the deceased respondent (who must be regarded as defendant) lived jointly with his father, Sita Ram, who is therefore, as a surviving member of a joint Hindu family, the legal representative of the deceased, and it is only him whom they wish to implead for the purposes of carrying on this appeal. On the other hand, the widow of the deceased, Musammat Khushalo, wishes to force herself into the litigation, in spite of the wishes of the appellants, on the contention that her husband was separate from his father, and that she is therefore his legal representative in preference to his father, Sita Ram.

49. To the former part of this state of things Section 368 of the Code (reading it as I do in the light of Sections 582 and 587 of the Code) is fully applicable. The effect of that section so interpreted is that upon the application of the appellant, the Court 'shall' enter the name of any person whom he desires to implead as legal representative of the deceased respondent. In this view the Court has no choice with reference to impleading Sita Ram, because the provisions of the statute are imperative. Then as to the latter part of the state of things already described by me, that is, the application of Musammat Khushalo, the provisions of the first part and the last paragraph of Section 582 (read with Section 587) are applicable, and, in my opinion, the claims of the widow to be impleaded in the action must be dealt with upon principles of Section 32 of the Code, so far as they are applicable to the array of the parties in appeals. The words of the last paragraph of Section 582 are very comprehensive and seem to be consistent with, the principles upon which such matters are dealt with by Courts of appeal in England, for, if I remember rightly, there are cases to be found in the English reports where even third persons have been made parties to appeals where the sound discretion of the Court required such a course. The ruling of Lord Selborne, L.C., and Brett and Cotton, L. JJ., in Markham v. Markham, L. R., 16 Ch. Div. 1, is an illustration of what I have just-said; and although I am not prepared to say definitely one way or the other that out powers in such matters under our Code are as extensive as those of the Courts of appeal in England under their rules of procedure, I think I may say that the principles upon which those Courts proceed furnish a good guide for our own procedure in cases of doubt.

50. Nor is the view which I have taken unsupported by the authority of the Indian case-law. In the case of Athiappa v. Ayanna I. L. R., 8 Mad., 300, Sir Charles Turner, C. J., in delivering the judgment of the Court, and referring to the Bombay ruling in Lakshmibai v. Balkrishna I. L. R., 4 Bom., 654, which, as I have already stated, was followed in Bai Javer v. Hathi Sing Kesri Sing I. L. R., 9 Bom., 56, went on to say: 'While we agree with the learned Judges of the High Court of Bombay that the Court must place on the record the person indicated as the representative of a deceased respondent, we are not prepared to say that in no case can the Court place on the record any other person as filling that character. The Court has the same power to make parties to an appeal as it has to make parties to a suit; and where there appears a substantial doubt whether the person indicated by an appellant is the representative of a deceased respondent or a representative for all purposes connected with the matters in litigation, and a person other than the person indicated by the appellant lays claim to the representative character, and on good prima facie grounds, and where, if he be not allowed to join, the interests of the person entitled to the estate of the deceased may be prejudiced, we consider the Court ought to proceed under Section 32 to make him a party to the appeal.'

51. This ruling was concurred in by Mr. Justice Mutusami Ayyar, and I am of opinion that it lays down a sound principle of law. There are, of course, some portions of Section 32 of the Code which may not be applicable to the procedure of the appellate Court, but so far as the matter now before us is concerned I think that that section is applicable. I have already said that the provisions of Section 367 of the Code are not applicable because the defendants-appellants are alive, and being dealt with as plaintiffs for the purposes of the array of parties, no dispute has arisen as to who is the proper legal representative. And what we have to consider is whether Musammat Khushalo has any such prima facie right as would entitle her to be made a party respondent to this appeal. Sita Ram, the father of the deceased Dipchand, respondent, as I have already said, must necessarily be impleaded, because he has been named by the appellants as the person against whom they wish to prosecute their appeal; and so far as Musammat Khushalo is concerned, I think that although her application to be made a party respondent to this appeal is opposed by the appellants, and may for aught we know be contested by Sita Ram also, we are not called upon to apply the procedure laid down in Section 367 of the Code of Civil Procedure, for the simple reason that the plaintiff-respondent, (Dipchand) cannot, according to my view, be regarded as a plaintiff for purposes of the array of parties to this appeal. All that we have to consider is whether Musammat Khushalo has any such prima facie case as would entitle her to be made a party respondent to this appeal under Section 32 read with Sections 582 and 587 of the Code of Civil Procedure. Even a Court of First Instance is not required by our laws to decide any dispute as to the legal representation of a deceased defendant, and I fail to see why a Court of appeal should be called upon either to decide such a dispute as to the legal representation of the deceased respondent and thus stay the decision of the appeal. In the present case, what I have gathered from the argument addressed to us at the bar is that the contention the legal representation of the deceased Dipchand rests mainly upon the decision of the question whether he was a member of a joint Hindu family with his father, Sita Ram, or was separate from him. We know that such questions are as a rule very difficult to decide and rest upon very minute details of evidence upon the issue when raised. It is obvious that no adjudication on such an issue when it arises between two defendants (i.e., two respondents) can bind them, and it seems to me that we shall only be delaying the disposal of this appeal if we apply Section 367 of the Code to this matter, and either decide the issue ourselves or stay the hearing of the appeal until the issue has been determined in another suit.

52. I do not wish to go into the details of the juristic reasons why the rules of procedure, ad litis ordinationem, applicable to a dispute as to the legal representation of a plaintiff are not the same as those which relate to a dispute in connection with the legal representation of a deceased defendant. The reason why I do not go into those details is that I have already given my reasons for holding that a plaintiff-respondent, such as Dipchand in this case, must be treated as a defendant for the purposes of the array of the parties to an appeal such as this; and that whilst Sita Ram must necessarily be impleaded as respondent, the claims of Musammat Khushalo to be impleaded also as respondent must be dealt with under Section 32 of the Code read with Sections 582 and 587.

53. This view explains why I have said that the ruling of the Bombay High Court in Lakshmibai v. Balkrishna, I.L.R., 4 Bom., 654, went too far in holding that no application could be made by a claimant to a deceased respondent to be impleaded in an appeal as a respondent. In my opinion the ruling of the Madras High Court in Athiappa v. Ayanna I. L. R., 8 Mad., 300, solves the difficulty in this case. And adopting that ruling, I hold that Musammat Khushalo has in this case shown a sufficient case to entitle her to be made a respondent in this appeal without the condition precedent of any decision whether she or Sita Ram is the proper legal representative of the deceased Dipchand.

54. Having said so much as to the views which I hold, I now proceed to state seriatim the specific answers to the five questions which, as I stated at the outset, arise in this case. My answer to the first question is that the order of the 17th July 1886, whereby Musammat Khushalo was brought upon the record as the legal representative of the deceased plaintiff-respondent, Dipchand, can be rescinded by the Bench at this stage, that is, after having heard the defendants-appellants.

55. To the second question my answer is that, notwithstanding the objections of the defendants, Musammat Khushalo, as the childless widow of the deceased plaintiff-respondent, Dipchand, occupies a position which affords her a sufficient prima facie status to resist the appeal, and, as such, to be impleaded as respondent under Section 32 of the Code of Civil Procedure read with Sections 582 and 587 of that Code.

56. To the third question my answer is that the defendants-appellants, being in the position of the plaintiffs for the purposes of the array of parties to their appeal, were bound by law to implead some one to represent the deceased plaintiff-respondent, Dipchand; that their omission to do so would subject them to the penalty of the abatement of their appeal under Section 368 read with Sections 582 and 587 of the Code of Civil Procedure; that this Court is therefore bound, by reason of the specific provisions of Section 568, to implead Sita Ram as a respondent to this appeal.

57. To the fourth question my answer is that under the circumstances of this case both Musammat Khushalo (who has already been brought upon the record as a respondent) and Sita Ram should be made parties to this appeal by reason of Section 32 read with Sections 582 and 587 of the Code of Civil Procedure (Act XIV of 1882).

58. To the fifth question my answer is that there exists no authority in our Code of Civil Procedure either to require or permit the decision of disputes as to the legal representation of a deceased plaintiff-respondent (any more than the Code requires or permits adjudication upon such questions when they arise between two or more defendants in the Court of First Instance); that, therefore, the question whether Musammat Khushalo or Sita Ram is the proper legal representative of the deceased plaintiff-respondent, Dipchand is a matter which we not only need not determine for the purposes of this appeal, but is a matter which we cannot determine under the rules of procedure as a condition precedent to the further hearing of this appeal.

59. I would therefore, without adjudicating upon the question whether Musammat Khushalo or Sita Ram is the proper legal representative of the deceased plaintiff-respondent, Dipchand, bring both upon the record as parties respondents to this appeal and would proceed to decide the appeal after having heard both of them.

60. As I understand the judgment of the majority of the Court, I take it to mean that it is not by reason of any provisions in the Code that we are required to hold an inquiry whether Sita Ram or Musammat Khushalo is the proper legal representative of the deceased plaintiff-respondent, Dipchand. I also take that judgment to mean that it is not upon the authority of any case-law existing in India or in England that such an inquiry is proposed to be held. I also understand that judgment to imply that even though a plaintiff-respondent may stand in the position of a defendant within the meaning of Section 582 of the Code, his death renders the question as to whether A or B is his legal representative a matter for adjudication by the Court as a condition precedent to the further progress of the appeal, and that such an adjudication can be made under an inherent power of the Court regulated by considerations of convenience and promotion of the ends of justice.

61. I regret that I cannot accept these views, for I cannot help holding that, even accepting the doctrine of inherent power in matters of procedure, the views adopted by the majority of the Court, far from resulting in convenience of procedure, will tend to prolong litigation and not necessarily obviate the inconveniences or difficulties anticipated from the view of the law which I have taken.

62. I am not aware of any rule of law which requires a Court in dealing with a case such as this to adjudicate upon the conflicting claims of two defendants and if the deceased plaintiff-respondent in this case, Dipchand, is to be treated as a defendant within the meaning of Section 582 of the Code, I can find no authority either in that Code or in the case-law to necessitate an adjudication between the contending claims of two or more persons claiming to be the legal representatives of the deceased. In such cases there may be not only two but many more persons, each claiming to be the proper legal representative of the deceased to the exclusion of the others, and if the law requires adjudication upon their respective rights as a condition precedent to the progress of the appeal, the effect would be to prolong litigation. And I may add that, even if such rights are adjudicated upon, it is far from certain that any such adjudications, when made by a Court of appeal in a case such as this, would be conclusively binding upon parties.

63. I need not, however, pursue this matter further, because although it may possibly be true that Sita Ram is in collusion with the present defendants-appellants (who have named him as the proper legal representative of Dipchand), yet it may also be true that he, is the real representative and not Musammat Khushalo, and it may also be true that both of them are his legal representatives. It may also be possibly the (act that there is a third person or persons of whose existence we have not heard, and who, by reason of the existence of a will or otherwise, are the proper legal representatives, but whose existence has not been brought to our notice by any of the parties to this litigation.

64. In a state of things such as this, what is the duty of this Court? Is it its duty to go about searching for the real legal representatives of the deceased? And if it is not, it is clear that, whether we have Musammat Khushalo or Sita Ram as the proper legal representative of the deceased Dipchand, our decree must necessarily be ineffective against those who are no party thereto, rendering further litigation necessary if the party or parties whom we hold to be the legal representatives of the deceased Dipchand are not his proper legal representatives. It seems to me that the difficulties and inconveniences contemplated by the judgment of the majority of the Court are such as no system of procedure can avoid. Indeed, those difficulties and inconveniences increase, and have the effect of prolonging litigation, when attempts are made to adjudicate upon the rights of parties arrayed on the same side, whether in a Court of First Instance or a Court of Appeal.

65. Opposed to the view of the law which I have taken, two judgments have been relied upon which I have not yet mentioned. One is the case of Naraini Kuar v. Durjan Kuar I. L. R., 2 All., 738, which relate to the exercise of powers under Section 32 of the Code, and the other case is Har Narain, Singh v. Kharag Singh I. L. R., 9 All., 447. The former of these cases does not appear to me to clash with my views because there is no question of intervenors in this case; but the latter no doubt militates against the ratio decidendi which I have adopted in this case. With much that was laid down in that case I am respectfully unable to agree for the reasons which I have already fully stated.

66. There is only one more point to which I need refer, viz., the difficulty contemplated as to costs if my views of the law were adopted. Under Section 223 of the Code of Civil Procedure read with Sections 582 and 587 of that enactment this Court would have the power to make any order as to costs within its judicial discretion, just as a Court of First Instance would have similar power. And in this appeal, if Sita Ram has been improperly impleaded, or if Musammat Khushalo has wrongly forced herself upon the record as a party to the appeal, and the appeal prevails or fails, these would be considerations regulating the discretion of the Court regarding the order as to costs.

67. For these reasons, without adjudicating upon the contention of the appellants that Sita Ram is the proper legal representative of the deceased Dipchand, and without adjudicating upon any such claims as he may have to that capacity as against Musammat Khushalo or vice versa, I would place both upon the record as parties respondents to this appeal, and would proceed to hear the same and dispose of it.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //