W. Comer Petheram, C.J.
1. This reference raises the question whether, in the case of an appeal by the defendant from the decree, the provisions of Chapter XXI of the Civil Procedure Code, with reference to the death of a defendant in a suit, are made applicable by Section 582 of the Code, so as to render it obligatory on the defendant-appellant to ascertain who are the personal representatives of the deceased plaintiff, and to make them parties to the suit; and whether, if he does not do so, the appeal abates.
2. In order to answer this question, it is necessary to examine the provisions of Chapter XXI, and to ascertain whether they can have any application to such a state of things. Sections 363, 364, 365, 366 and 367 relate to cases in which the plaintiff has died, and provide a machinery by which, when this has happened and the remedy survives,--i.e., when his estate is entitled to the amount claimed--his personal representatives, or, in other words, the persons entitled to receive and give a receipt for the debt or damages, shall make themselves parties to the suit before it can proceed. These provisions are for the protection of the defendant, to ensure that the payment by him shall be made to the proper person, and that no future claim shall be made against him in respect of the same matter. Section 368 provides for the death of the defendant, where the cause of action survives, and provides a machinery by which a plaintiff who has made a claim and brought an action against a person who has died pending the suit, may enter the name of some person who represents the property of the defendant, in the place of the name of the original defendant, and with a view] of ultimately getting execution against the property of the deceased in the hands of the new defendant. The object of this legislation is obvious. The plaintiff by his suit seeks to recover something, and it would be ridiculous for the suit to proceed unless there was some person from whom the subject-matter of the suit could be recovered.
3. The question then is--Are these provisions applicable 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? In my opinion they are not. All the provisions of Chapter XXI relate to the addition of parties by the plaintiff, who would have the means of knowing who were the proper persons to add, and who, for the reasons I have before stated, is bound in the interests of justice to make the additions. But none of these reasons relate to the case of a defendant-appellant who did not set the litigation on foot, and is only interested in getting rid of the decree against him.
4. It appears to me, therefore, that the words 'so far as may be' in Section 582 must be construed as meaning 'so far as may be necessary in order to carry into effect the remedies contemplated by Chapter XXI.' And this view appears to me to be strongly supported by the terms of the Limitation Act. Article 171 of Scheduled ii of that Act prescribes a period of limitation for applications made under Section 363 or Section 365 of the Civil Procedure Code, and this period runs from 'the date of the plaintiff's or appellant's death.' Now Sections 363 and 365 relate to the death of a plaintiff. Then Article 171 B provides the limitation period for applications, under Section 368 of the Code, 'to have the representative of a deceased defendant made a defendant,' and this period runs from 'the date of the defendant's death.' Now, if the contrary opinion to that which I hold were correct, this provision would correspond with the other, and the period would run from 'the date of the defendant's or respondent's death.' But we find that the Legislature has taken care to say nothing of the sort; nor, in my opinion, could it have been said without results which would be not only meaningless but mischievous. For these reasons, my answer to the reference is in the negative.
5. At the hearing of this reference I was disposed to think that the question put by it ought to be answered in the affirmative. But a more careful consideration of the terms of Section 368 of the Civil Procedure Code has brought my mind to the opposite conclusion. 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 will, I presume, be generally conceded that a rule so stringent as one laying down that in certain circumstances an appeal shall abate, must be strictly construed. Now, Section 368 provides that 'when the plaintiff fails to make such application within the period prescribed therefor, the suit shall abate, unless be satisfies the Court that he had sufficient cause for not making the application within such period.' And we are asked to read this rule as if it were that 'when a defendant-appellant fails to make such application within the period prescribed therefor, the appeal shall abate, unless he satisfies the Court that he had sufficient cause for not making the application within such period.' It is important here to notice the manner in which both Section 368 and the existing provisions of the Limitation Act have been brought into their present form. In Act X of 1877, there was no provision corresponding to that contained in the last paragraph of Section 368 of the present Code. That clause was introduced into the law of Civil Procedure by Section 60 of Act XII of 1879; and the same Act also contained provisions amending the Limitation law. By Section 108, the words in Article 171 of Act XV of 1877, 'or appellant' were added in the first column, and in the third, the words 'or appellants' were inserted. Section 582 of Act X of 1877 was amended by Section 88 of Act XII of 1879, which substituted for the first paragraph of the former section the following words: '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 Sections 363 and 365 the word 'plaintiff' shall be held to include an appellant.' In other words, it is obvious that, at the time when the last clause of Section 368 was introduced, the rule that an appeal should, in certain circumstances, abate, was confined to cases in which a plaintiff or an appellant or a defendant had died; and this view is supported by the omission in the third column of Article 171B of the Limitation Act, relating to applications made under Section 368 of the Civil Procedure Code, of any reference to the death of a respondent. It therefore appears to me impossible to say that the appellant in the present case has failed to make the application 'within the period prescribed therefor,' because no period for making such an application is in fact prescribed at all; and, for this reason, I concur with the learned Chief Justice in answering the question referred to the Full Bench in the negative.
6. I am of the same opinion.
7. I am of the same opinion.
8. I regret to say that I have been obliged to come to a different conclusion from that of the majority of the Court. It is necessary, in the first place, to consider what was the policy of the Legislature in passing Section 582 of the Civil Procedure Code I do not think that I shall be violating any rule of judicial etiquette if I say that I am responsible for the latter part of the first paragraph of that section, because it was at my suggestion that the Legislature adopted those words, and I mention this circumstance because it appears that the principle underlying those words still meets with the approval of the Legislature. Now, the meaning of the terms used in the statute appears to me clear enough. Chapter XXI relates to proceedings which arise out of the death, marriage, and insolvency of parties to a suit. The object of Section 582 is to obviate the necessity of repeating the provisions of Chapter XXI, so as to make them applicable to appeals. The part of Section 582 which we now have to consider is the following: '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.' I confess that, applying the recognized principles of the construction of statutes, I am altogether unable to hold that the word 'appellant' in the passage I have just read means a plaintiff-appellant only, any more than I can hold that by 'respondent' a plaintiff-respondent alone is meant. It has been said that the position of a defendant-appellant is materially different from that of a plaintiff-appellant in reference to the purposes for which Chapter XXI was enacted. I confess that I am unable to take this view. I understand one of the principles of jurisprudence to be this--that no man is entitled to come into Court without some cause of action, which means the existence of a right, and some injury or violation of that right. But for the purpose of coming into Court, it is necessary for one who complains that his right has been violated, to implead those whom he accuses. If he cannot do this, his suit will not lie, for the presumption of law is, that everything has been done rightly, or rather rightfully, till the contrary is shown. The law does not presume wrong in the conduct of the parties any more than in the judgments of the Courts, and it follows that where the 'injury,' if I may call it so, is a wrong judgment, or a judgment by which a party to the suit is aggrieved or injured, it is only going one step more in the same direction, and reasoning upon a close analogy, to hold that those against whom the proceedings in appeal are taken should be impleaded by the person taking the proceedings, that is, the appellant. The principle of audi alteram partem applies equally to suits and to appeals. Indeed, the express provisions of Section 553 of the Code leave no doubt in my mind that the provisions prescribed for bringing a respondent before the Court are identical with those provided for a defendant. It is not only in that section that analogy exists between the position of a respondent and that of a defendant for the purposes of being impleaded and brought before the Court. The whole Code seems to me to maintain the analogy, which was natural as a matter of drafting, for the purpose of obviating unnecessary repetition of rules. And I think I can safely say that there is not a single clause in the Code which, in this respect, distinguishes the position of a defendant-appellant from that of a plaintiff-appellant or the position of a defendant-respondent from that of a plaintiff-respondent. It therefore appears to me that where a defendant against whom a decree has been passed, says that the decision is wrong, and appeals against it, he is bound, in the first place, to bring the necessary parties before the Court by impleading them as respondents, and in the event of the respondent's death, to apply that the name of the legal representative of the respondent be brought upon the record.
9. As to the difficulty which has been suggested with reference to the use of the word 'defendant' only, in Article 171B, Scheduled ii of the Limitation Act, the explanation seems to me to be simple. The clause was introduced by Section 108 of Act XII of 1879, which also amended the Civil Procedure Code of 1877. The reference then to Section 368 of the Code was no doubt to the section of the Code of 1877 as amended, and the word 'defendant' was no doubt to be interpreted in the sense of that section. But by the passing of the present Code, Act XIV of 1882, the word 'defendant' as used in the clause of the Limitation Act must, by reason of the second paragraph of Section 3 of the Code, be understood in the sense in which it is used in Section 368 of the present Code, which must, of course, for the purposes of proceedings in appeal, be read with Section 582. 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 suit) 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, it so, what limitation would govern such an application. The Bombay Court in Lakshmibai v. Balkrishna I.L.R. 4 Bom. 654 held that no, such application should be made against the wish of the appellant; but, be that as it may, the question remains how an appeal is to proceed when the defendant-appellant fails or declines to make such an application as is contemplated by Section 368, to bring some one upon the record to represent the deceased plaintiff-respondent. I say, with due deference, that, according to the opinion of the majority of the Court, there can be only two alternatives--either the appeal must be heard and determined in the absence of the opposite party, or it must remain for ever upon the appellate file without being subject either to dismissal or to abatement. But it seems to me that the Code contemplates no such results, and a close comparison of the language of Section 682, as it stood in the Code of 1877, with the amendments introduced by Section 88 of Act XII of 1879, and again with the language of the section as it stands in the present Code, goes to support my view.
10. I am consequently of opinion that, under the circumstances contemplated by the present reference, the appeal would abate, and that the answer which we should give is the affirmative. I may add in conclusion that, among the cases cited during the argument, I regard Lakshmibai v. Balkrishna I.L.R. 4 Bom. 654 and Rajmonee Dabee v. Chunder Kant Sandel I.L.R. 8 Cal. 440 as authorities supporting the view which I have expressed, and I do not regard the decision of the Bombay Court in Bai Javer v. Hathising Kesrising I.L.R. 9 Bom. 56 as inconsistent in principle with what I have said.