1. In this case Sheonath Singh made an application for leave to appeal to the Supreme Court, and leave was granted by this Court. Thereafter, the appeal was declared admitted on the 2nd of November. 1954. Steps were taken to print the record, and the record was ready for transmission to the Supreme Court when one of the respondents Jhut Singh died on the 28th of February, 1955. Thereafter, an application was made to this Court on the 9th of May, 1955, under Order XVI, Rule 12 of the Supreme Court Rules for a certificate that Jhut Singh was dead, and that his sons Satidan-singh and Sardarsingh were his legal representatives and were proper persons to be substituted or entered on the record in place of Jhutsingh.
It was however, reported by the office that such an application should have been made within 60 days of the death of Jhutsingh under Rule 14 of Order XVI of the Supreme Court Rules and the application was beyond time. Thereupon, notice was issued on the 11th of October, 1955, to the respondents who objected that as the application had not been made within the time allowed, it should be dismissed and no certificate should be granted. It was also urged that the appeal to the Supreme Court had abated when the appellant failed to bring the heirs of Jhut Singh. on the record within sixty days of his death.
2. Then on the 13th of October, 1955, Sheo-nath Singh appellant made two applications to this Court. In the first application, he said that the usual time allowed for bringing the heirs of the deceased party on the record was ninety days, and he therefore made the application within ninety days and had no idea that the rules of the Supreme Court required such an application to be made within sixty days. It was, therefore, prayed that as the rule prescribing limitation was framed bv the Supreme Court only recently in January,1954, the earlier application of the 9th of May,1955, might be treated as an application for setting aside the abatement.
The second application of the 13th of October was to the effect that the benefit of Section 5 of the Limitation Act might be given to the applicantin case the application of the 9th of May, 1855, was not treated as an application for setting aside the abatement. On the same date, Satidan Singh and Sardarsingh, sons of the deceased Jhutsingh, also filed an application praying that the abate-ment be set aside, and the delay, if any, be condoned, and they be brought on record in place of their father.
3. On these applications being brought to the notice of learned counsel for the respondents, an objection was taken by him that such applications do not lie to this Court.
4. The first question therefore, that arises for determination is whether such an application lies to this Court, and whether this Court has power to set aside ah abatement.
5. Order XVI of the Supreme Court Rules provides for the appellant's appearance and lodging of petitions of appeal. Under Rule 2, the appellant has to lodge his petition of appeal in the Supreme Court within the period of thirty days from the date of the service of notice of dispatch of the record by the Registrar of the Court appealed from. That contingency however never arose for the Registrar of this Court has not yet given notice of the dispatch of the record.
6. Then we come to Rule 12 which lays down that where at any time between the admission of an appeal and the dispatch of the Record to this Court, the Record becomes defective by reason of the death or change of status of a party to the appeal, or for any other reason, the Court appealed from may, notwithstanding the admission of the appeal, on an application in that behalf made by any person interested, grant a certificate showing who, in the opinion of the said Court, is the proper person to be substituted or entered on the record in place of, or in addition to the party on record and the name of such person shall thereupon be deemed to be so substituted or entered on the record as aforesaid without express order of the Supreme Court.
Then follows Rule 13 which provides that where the record becomes defective subsequent to its dis-patch to the Supreme Court, the Court appealed from shall upon an application in that behalf made by any person interested, cause a certificate to be transmitted to the Registrar of the Supreme Court showing who, in the opinion of the Court appealed from, is the proper person to be substituted or entered on the record in place of or in addition to the party on the record. Rule 14 provides that an application to bring on record the legal representative of a deceased appellant or respondent shall be made within sixty days of the death of the said appellant or respondent.
Rule 14-A provides that the provisions of Order XXII of the Code relating to abatement shall, so far as may be. apply to appeals to the Supreme Court, Then comes Rule 15 which provides that a petition for an order of revivor or substitution shall be accompanied by a certificate from the Court appealed from showing who, in the opinion of the said Court, is the proper person to be substituted or entered on the record in place of, or in addition to, the party on record.
7. A comparison of Rules 12 to 15 shows that it is only in a case provided by Rule 12 that a certificate granted by this Court has the effect of substituting the person named in the certificate in place of the person who is dead on the record of the appeal. Under Rule 13 or Rule 15, this Court merely grants a certificate as to who is the proper person to be substituted, but that does not amount to substitution of that person on the record. Obviously therefore where the record becomes defective before its transmission to the Supreme Court,this Court has power on an application being made to it to say who should be substituted for that party.
But under Rule 14 such an application must be made within sixty days of the death of the party. If it is not made within sixty days, the power of this Court under Rule 12, by which the certificate granted by this Court suffices to substitute the person named in the certificate ,in place of the party dead, does not come into play at all. The reason is that, under Rule 14-A read with Order XXII of the Code of Civil Procedure, the appeal automatically abates when an application for bringing the legal representatives of a dead party is not made within sixty days of the death.
There is no provision in these Rules by which this Court can set aside the abatement on an application made for the purpose. If anything Rule 15 shows that an application for setting aside an abatement has to be filed in the Supreme Court in order to get an order of revivor, though such an application has to be accompanied by a certificate from this Court as to who is the proper person to be substituted. Similarly where the record becomes defective after its dispatch from this Court, the application for substitution has to be filed in the Supreme Court under Rule 15, though it has to be accompanied by a certificate of this Court as provided by Rule 13.
8. In this case Jhutsingh died on the 28th of February, and no application as contemplated by Order XVI Rules 12 and 14 of the Supreme Court Rules was made within 60 days. Therefore, this Court has no power to grant a certificate under Rule 12, which would have the effect of substituting the. person named in the certificate on the record in place of the person who is dead. All that this Court can do is to grant a certificate to the appellant stating who is the proper person to be substituted, in case the appellant desires to make an application for revivor before the Supreme Court under Rule 15. It has been urged that it is not necessary for this Court to give a certificate at this stage because no certificate is asked: for as contemplated in Rule 13 or Rule 15.
However, there is, in our opinion no harm if we grant a certificate as contemplated by Rule 15, even though the application, which was made to us in May, 1955, was under Rule 12. That would save time, for the appellant would in any case have to take a certificate from us before he makes a petition for an order of revivor before the Supreme Court in this case. It is, however, clear from Rules 12 to 15 that abatement having once taken place, when no application was made within sixty days of the death of Jhutsingh, it is not open to, us to set aside the abatement, which can only be set aside by an order of revivor by the Supreme Court under Rule 15.
9. The result, therefore, is that the recordmust be dispatched to the Supreme Court at once,defective as it is for it is not possible for us topass an order under Rule 12 of Order XVI of theSupreme Court Rules, in the present case. ,Eutwe grant a certificate to the appellant Sheonath-singh that Satidansingh and Sardarsingh, who areadmittedly sons of Jhut Singha, are the properpersons for substituting on the record in place of Jhutsingh deceased. This certificate is granted under Rule 15 only and has noit the effect of substituting these persons on the record in place of Jhutsingh deceased. For mat, Sheonathsingh appellant will have to get an order of revivor from theSupreme Court under Rule 15.