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NaraIn Das and anr. Vs. Madhuban Das and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil;Limitation
CourtAllahabad
Decided On
Judge
Reported in(1907)ILR29All535
AppellantNaraIn Das and anr.
RespondentMadhuban Das and ors.
Excerpt:
civil procedure code, sections 368, 582 and 587 - act no. xv of 1877(indian limitation act), schedule ii, article 175c--application to bring on to the record the heirs of a deceased respondent--limitation. - .....(1906) i.l.r., 29 mad., 529--and argued that article 175c of the indian limitation act did not apply to appeals from appellate decrees. the article which he wishes us to apply is article 178 of the limitation act. there is no doubt that the view taken by the madras high. court supports the contention raised here, but, with all the respect due to the learned judges who decided that case, we are not prepared to follow them. we prefer the reasoning which commended itself to a division bench of the same court--vakkalagadda narasimham v. vahizulla sahib (1906) i.l.r., 28 mad., 498. the application made to bring the representative of the deceased respondent in an appeal, whether that appeal is an appeal from an original decree or an appeal from an appellate decree, is an application made.....
Judgment:

George Knox and Richards, JJ.

1. At the hearing of this appeal a preliminary objection was taken on behalf of Lachhman Das respondent to the effect that the appeal abated. It was contended from the papers on the record that Narain Das, one of the respondents to this appeal, had died on some date before the 30th of May 1906 and that the application to bring Lachhman Das and Ram Das on the record as representatives of Narain Das, deceased, had not been made within the six months proscribed. In answer to this the learned vakil for the appellants draws our attention to the Full Bench ruling of the Madras High Court--Susya Pillai v. Aiyakannu Pillai (1906) I.L.R., 29 Mad., 529--and argued that Article 175C of the Indian Limitation Act did not apply to appeals from appellate decrees. The article which he wishes us to apply is Article 178 of the Limitation Act. There is no doubt that the view taken by the Madras High. Court supports the contention raised here, but, with all the respect due to the learned Judges who decided that case, we are not prepared to follow them. We prefer the reasoning which commended itself to a division bench of the same Court--Vakkalagadda Narasimham v. Vahizulla Sahib (1906) I.L.R., 28 Mad., 498. The application made to bring the representative of the deceased respondent in an appeal, whether that appeal is an appeal from an original decree or an appeal from an appellate decree, is an application made under Section 368 of the Code of Civil Procedure, the provisions of which have been extended in the one case by Section 582 and in the other by Section 587. Section 582 authorizes our reading Section 368 as follows: When the 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 the period prescribed therefor. The provisions of Section 368 as altered by Section 582 are, by Section 587, to apply as far as may be to appeals from appellate decrees, and, though the amendment to the Limitation Act contained in Article 175C might have been framed with greater care and precision, we are prepared to hold that the words contained in Article 175C may be read so as to cover appeals from appellate decrees. This reading is sanctioned by the procedure followed by this Court ever since this amendment was introduced in the Limitation Act.

2. The learned vakil for the appellants asks us to grant him time to show that he was prevented by sufficient cause from making the application within the six months allowed. We think this application should be granted. Let the appeal stand over for three weeks.


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