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Maqbul Alam and ors. Vs. Jawwad HusaIn and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtAllahabad High Court
Decided On
Case NumberCivil Revn. No. 791 of 1953
Judge
Reported inAIR1959All625
ActsLimitation Act, 1908 - Schedule - Article 177; Code of Civil Procedure (CPC) , 1908 - Order 22, Rule 3
AppellantMaqbul Alam and ors.
RespondentJawwad HusaIn and ors.
Appellant AdvocateKrishna Shanker, Adv.
Respondent AdvocateH. Beg, Adv.
DispositionApplication dismissed
Excerpt:
limitation - legal representative - article 177 of constitution of india - order 22 rule 3 of code of civil procedure, 1908 - respondent dies during stay of appeal - legal representative of the respondent shall be substituted on the expiry of the stay - even though it is beyond the period of limitation from the date of the respondent or from the knowledge of the death of the respondent. - - in any event if the proceedings had been stayed, that itself would be a good ground for condoning the delay under section 5 of the limitation act......which was pending in the lower appellate court. 2. smt. kasim-un-nissa, appellant no. 5, died. abul hasan, respondent no. 4 in the appeal, also died. so far as appellant no. 5 was concerned, her heirs were on the record and there was no difficulty about it. so far as abul hasan was concerned, his heirs were not on the record. he had died somewhere in 1947 and the application for substitution was made on 18-2-1952. an application under section 3 of the limitation act was also filed with the allegation that the appellant did not know of the death of abul hasan and, therefore, benefit should be given of section 5 of the limitation act. the learned civil judge held that it was not necessary for the appellant to prove that he had no knowledge because the proceedings had been stayedin the.....
Judgment:
ORDER

V.D. Bhargava, J.

1. This is a defendant's application in revision arising out of an appeal which was pending in the lower appellate court.

2. Smt. Kasim-un-nissa, appellant No. 5, died. Abul Hasan, respondent No. 4 in the appeal, also died. So far as appellant No. 5 was concerned, her heirs were on the record and there was no difficulty about it. So far as Abul Hasan was concerned, his heirs were not on the record. He had died somewhere in 1947 and the application for substitution was made on 18-2-1952. An application under Section 3 of the Limitation Act was also filed with the allegation that the appellant did not know of the death of Abul Hasan and, therefore, benefit should be given of Section 5 of the Limitation Act.

The learned Civil Judge held that it was not necessary for the appellant to prove that he had no knowledge because the proceedings had been stayedin the case since 1946 and remained stayed till the date of the presentation of the application for substitution. And in the circumstances he was of opinion that there was no abatement. The proceedings having been stayed it was open to the appellant after, the stay order had been discharged to move that application. He has relied on Gurbux Singh v. Asa Singh AIR 1952 Pepsu 40.

3. It has been argued before me in revision that the appellate court was wrong in taking that view. If the proceedings had been stayed, according to learned counsel fox the applicant, the proceedings for substitution were not stayed, I am unable to agree with this contention for if once proceedings are stayed, all proceedings in the suit will have to remain stayed. It may have been open to the appellant to make an application for substitution, but that would have remained pending as the court could not have passed any order in the meantime. In any event if the proceedings had been stayed, that itself would be a good ground for condoning the delay under Section 5 of the Limitation Act. In the circumstances I see no reason to interfere in this revision.

4. This application is accordingly dismissed, but I make no orders as to costs.

5. The stay order is discharged.

6. The application has been pending for overfour years. Let the record be sent back to the courtbelow forthwith so that the case may be decided asexpeditiously as possible.


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