1. These are applications by the stateof Madras purporting to be made under Order 22 Rule 10, C. P. C.
2. The facts are: O. S. No. 247 of 1947 was filed in the District Munsif's Court, Hospet, by Javali Govindappa 'alias' Rindayya firm at Hospet by partner Surasetty Basappa against the state of Madras in the Commercial Tax Department. This Govindappa 'alias' Rindayya died on 22-10-1951 at Hospet surviving him his widow Narasamma and Surasetty Basappa died on 4-3-1952 surviving him his major son Satyanarayana Setty. This firm has ceased to function after 1949. In regard to the decree and judgment in O. S. No. 247 of 1947 a second appeal has been filed by the State of Madras in S. A. No. 886 of 1952. In regard to the decree and judgment, in O. S. No. 246 of 1947 in which the plaintiff was Surasetty Basappa, A. Sivappa Firm, Kottur, and the defendant was the state of Madras, a second appeal has been filed by the state of Madras to S. A. NO. 887 Of 1952. C. M. P. No. 1660 of 1953 is filed in S. A. No. 887 of 1952 to bring Satya-harayana Setty as the legal representative of Surasetty Basappa and Gurubasappa as the legal representative of Sivappa.
Affidavits have been filed in both these applications through the Deputy Commercial Tax Officer, Hospet, about these deaths and the Department coming to know of them only in December 1952 and praying for bringing on record the legal representatives Narasamma and Satyanarayana Setty in C. M. P. No. 1659 of 1953 and Suresetti Satyanarayana Setti and Adur Gurubasappa as the legal representatives in C. M. P. NO. 1660 of 1953.
2a. These applications are opposed on two grounds, viz, (a) laches and (b) the application should have been made under Order 22 Rule 4, C. P, C.
3. In regard to laches, it is unnecessary to go into this question now in view of the turn which these applications have taken.
4. In an appeal when one of two or more defendants dies and the appeal is pending in a court having jurisdiction to entertain it and the right to sue survives, the application should be made under Order 22, Rule 4, C. P. C. But this application cannot be filed if the right to sue does not survive at all or if it survives against the surviving defendant alone in which case Rule 2 alone will apply, and the application should have been filed under Order 22, Rule 4. C. P. C. This application not having been filed within the tune prescribed by Article 177, Limitation Act, the question is has the court power to excuse the delay and accept the application made after the period of limitation. It has been held that Section 5, Limitation Act does not apply to an application under this rule. But an abatement can be set aside for sufficient cause under Rule 9 so that in such cases the strict procedure would be to declare the appeal to have abated and to allow the plaintiff or the appellant, as the case may be, to apply under Rule 9 and on sufficient cause being shown excuse the delay, set aside the abatement and bring the legal representatives on record and proceed with the hearing of the appeal.
5. These applications will not lie under Order 22 Rule 10, C. P. C. because of two reasons. First of all, the rule is a residuary one governing cases which are not provided for by the previous rules of the Order so that if any of these other rules applied to the facts of a particular case, the effect of that rule cannot be got rid of by a resort to this rule.
In -- 'In re Atiullah Khan, AIR 1941 Oudh 495 (A)', when there was failure to bring on record the legal representatives of a deceased after abatement under Rule 4, an application was made under this Rule 10 to substitute a transferee and it was held that it was not maintainable.
In -- 'Rajendra Prasad v. Ganga Bux Singh' AIR 1945 Oudh 60 (B), it was held that in a case where devolution takes place by reason of death and the matter falls under Rule 4, Rule 10 will have no application. It would be different however if there are two devolutions, viz, one by the death of the party coming under Rule 4 and the other by a transfer of his interest prior to his death and in such a case the transferee has a right to be impleaded under Rule 10 and the death of the party cannot take away the right.
6. Secondly, this Rule 10 is an enabling one and it is based on the principle that the trial of the suit or appeal cannot be arrested merely by reason of devolution of interest of a party in the subject matter of the suit or appeal and the person acquiring the interest may continue the suit with the leave of the court and if he does not choose to do so the suit might be continued with the original party and the person acquiring the interest will be bound by or can have the benefit of the decree, as the case may be. Though in proper cases like a mortgage suit where a preliminary decree had been passed the decree-holder can also apply under Order 22, Rule 10, this enabling rule is not a device intended to get over the laches of a party bound to move under Rule 3 or Rule 4.
7. Therefore, these applications are dismissed with costs leaving it open to the State to adopt the proper procedure in the light of the observations made above and in which case the date of filing of these applications will be taken into consideration.