1. This appeal arises out of a suit brought by the present appellants and one Debi Prasad, who was plaintiff 1 in the array of parties, for demolition of certain buildings made by the defendant-respondents. The suit was decreed by the Court of first instance, but has been dismissed by the lower appellate Court on appeal by the defendants.
2. It appears that Debi Prasad died on 16th June 1927. The appeal was filed in the lower appellate Court on 20th June 1927, i.e., four days after the death of Debi Prasad. He was, however, shown as the first respondent. On 15th July 1927 an application was made by the defendants (appellants be ore the lower appellate Court) asking for permission to implead the legal representatives of Debi Prasad and for extension of time under Section 5, Lim. Act, on the ground that they were not aware of the fact of Debi Prasad's death when the appeal was filed. The lower appellate Court granted this application, being satisfied that the mistake in impleading Debi Prasad as a respondent was bona fide and that the circumstances justified the application of Section 5, Lim. Act. On the merits the appeal was allowed and the plaintiffs' suit was dismissed.
3. The present second appeal has been filed by the plaintiffs, and the only question argued on their behalf relates to the order passed by the lower appellate Court on the application datted 20th June 1927 permitting the legal representatives of Debi Prasad to be shown as respondents and extending the period of limitation on cause shown. It is contended that an appeal, which was no appeal in its inception in consequence of a dead man having been shown as a respondent, cannot become a good appeal by a subsequent amendment and by the legal representatives of such respondent being impleaded as respondents. It may be conceded that ordinarily an appeal directed against a dead man is no appeal in law; but it cannot be disputed that bona fide error in petitions of appeal as in case of plaints can be allowed to be amended in appropriate circumstances. I am of opinion that the provisions of Order 1, Rule 10, Civil P. C, read with Section 107 of the same Code, enables a Court to allow amendment of petition of appeal and addition of parties as respondents. Dr. Agarwala has referred me to Order 41, Rule 20, Civil P. C, in support of his contention that the powers of the appellate Court in the matter of adding parties is limited by its terms. I am unable to accept this contention. 0. 41, E. 20, specifically refers to addition of parties who figured as plaintiffs or as defendants in the original suit.O. 1, E. 10, Civil P. C, is general and read with Section 107 permits addition of parties in appeal in a proper case, assuming, of course, that the addition of a new party in appeal is not objectionable on any other ground. Section 153, Civil P. C, has been applied by the Madras High Court in a case similar to the one before me: see Gopala Kristnayya v. Lakshmana Rao A.I.R. 1925 Mad. 1210. It provides that the Court may amend any defect or error in any proceeding in a suit.
4. Read with. Section 107, Civil P. C, it will certainly be applicable to appeals. The expression 'any proceeding' is general enough to include filing of an appeal. For these reasons I hold that the lower appellate Court did not act contrary to law in allowing the names of legal representatives of Debi Prasad being inserted in the heading of the petition of appeal and the name of Debi Prasad being removed. This being done, the question which at once arose was whether as against the newly added respondents the appeal should be regarded to be within limitation. If the addition had been made before the expiry of the period of limitation, no further question could have arisen. In view, however, of the application dated 15th July 1927 having been made long after the expiry of the period of limitation, the appellants before the lower appellate Court fell back upon the provisions of Section 5, Lim. Act. They succeeded in showing to the satisfaction of the lower appellate Court that they were not aware of the fact of Debi Prasad's death before the appeal was filed, as the latter lived in Chhapra district in another province. Considering all the circumstances, the lower appellate Court extended the period of limitation. The discretion exercised by the lower appellate Court does not seem to have been exercised in an unreasonable manner. This being so, the appeal which the lower appellate Court eventually heard was in form as regards parties and was unaffected by any rule of limitation.
5. In the view which I take of the questions argued before me this appeal cannot succeed. It is accordingly dismissed with costs.