1. This is an application by a defendant appellant praying for various reliefs including one for setting aside abatement If any, amendment of the cause title and body of the memorandum of appeal etc.
2. One Jnanendra Narayan Singh Roy filed a suit in this Court being Suit No. 247 of 1948 against Subodh Chandra Chakravorti and several others and obtained a money decree therein. In execution of the decree he levied attachment on 2-4-1953 to the extent of Rs. 26,000/- in respect of moneys in the hands of the Executive Engineer, North Eastern Railway on the allegation that Subodh Chandra Chakravorti was the sole proprietor of Chakravorti and Company. The appellant Sachindra Chandra Chakravorti preferred a claim against the said attachment in or about June 1953 alleging that under a registered deed of dissolution dated 9-8-52, it was he and not Subodh Chandra Chakravorti who was the owner of the moneys attached. On 21-6-54 Jnanendra Narayan Singh Roy filed a suit in this Court being Suit No. 307 of 1954, against Sachindra Chandra Chakravorti and Subodh Chandra Chakravorti praying for a declaration that the dated of 9-8-52 was void as against him and a further declaration that the moneys lying with the North EasternRailway and payable to Chakravorti and Company were liable to attachment for recovery of the decretal amount in Suit, No. 247 of 1948. The suit was contested by the appellant herein and a decree was passed on 22-12-61 in favour of the said plaintiff. By an order made by the Trial Judge the operation of the decree was stayed till 15-3-62. The plaintiff died on 23-3-62 leaving him surviving his widow Sm. Ava Singh Roy and three children.
3. The decree was settled and passed on 18-6-62. On 16-7-62, the present appeal was filed by Sachindra. Chandra Chakravorti without a certified copy of the decree with leave of this Court and stay of execution was obtained ex parte on his undertaking to file a certified copy. On the next day a clerk of the appellant's solicitor went to serve a copy of the notice of motion in connection with the application for stay on the solicitor for the respondent Jnanendra Narayan Singh Roy and came to learn that he was dead. The appellant's solicitor S. K. Guha wrote to his client informing him of the death of the respondent and he also asked T. P. Mitra solicitor for the respondent to supply him with particulars regarding the heirs and legal representatives of the deceased. On 20-8-62, the appellant received his solicitor's letter and wrote back requesting, him to take the necessary steps. The respondents' solicitor T. P. Mitra wrote to the appellant's solicitor on 31-8-62 informing him that the respondent had died on 23-3-02 leaving a widow and minor children. On receipt of this letter S. K. Guha wrote to the appellant enclosing a copy of T.P. Mitra's letter and asking him for instructions. It is said that the appellant received the solicitor's letter at Koraput after it had been redirected from Cuttack on 10-9-62 and on 11-9-62, he wrote to his solicitor asking him to make an application for substitution. S.K. Guha received the letter on 15-9-62 and instructed counsel to draw the necessary petition. On 17-9-62 a draft petition was received from counsel. The solicitor Guha caused the same to be engrossed and stamped on 19-9-62 and despatched the same to the appellant by registered post on 20-9-62. The appellant is unable to give the date on which he received this registered packet but he states in paragraph 7 of his affidavit affirmed on 7-2-63 that the Judge's Court at Cuttack closed for the Puja vacation one day alter the receipt of this letter and when he went to the said Court the day next after receiving the said petition for affirmation of the same before a Commissioner he found that although the Criminal Courts were open the Judge's Court was closed for the long vacation. According to the appellant he knew that this Court would remain closed from 28-9-62 to 18-11-62 and he therefore left for his worksite away from Cuttack. He received a letter from his solicitor on 14-11-62 reminding him about affirmation and return of the petition. He went back to Cuttack on 17-11-62 got the petition affirmed in the Judge's Court and sent the same to Calcutta the next day.
4. It will thus be seen that although the appellant came to know about the date of the death of defendant Jnanendra Narayan Singh Roy on 20-8-62 and although his solicitor had immediate instructions to take the necessary steps in the matter which could only mean making an application for substitution of the legal representatives and was apprised of the names of the legal representatives on 1-9-62 the petition was not made ready before 17-9-62 and the application for substitution was not made even up to 27-9-62 when the Court closed for the long vacation. The period of 90 days for making an application for substitution from the death of the deceased as also the period of making an application for settins aside the abatement had both passed when news of the death was received by the appellantand if we are to judge of the diligence of the appellant During the period beginning on the receipt of the said news till the making of the application it must be held that the appellant has failed to account for the delay in coming to this Court. It was the duty of the appellant to take prompt steps in making the application after receipt of the news of the death on 20-8-62 but he left things in the hands of his solicitor who instead of preparing the petition after receipt of particulars of the legal representatives on 1-9-62 chose to wait and write to the appellant again for instructions. The solicitor should have had the petition made ready early in September and sent the same to client for affirmation. It is net known when exactly the petition was received by the appellant but it is clear that even if the appellant could not come down to Calcutta to affirm it he could have done so at Cuttack before the closing of this Court and sent it back to Calcutta. If he could not affirm it in the Judge's Court at Cuttack he could have done so before a Magistrate. The solicitor had informed the appellant as far back as 3-9-62 that the application had to be made immediately and by a letter of 20-9-62 that the same would soon be barred by limitation. It should not have been difficult for the appellant to state the exact date when he received the said letter of 20-9-62, nor the date when he found the Judge's Court at Cuttack closed although the Criminal Courts were open. Whether this information has been deliberately withheld or not is difficult to say but clearly the appellant has failed in his duty to explain the delay in making the application before the closing of the Court for the long vacation.
5. The period of limitation for filing an appeal from a decree or order of this Court in the exercise cf its original jurisdiction is 20 days from the date of the decree or order under Article 151 of the Limitation Act. Under Rule 2 of Chapter 31 of the Rules of the Original Side of this Court every memorandum of appeal from the Original Side is to tie in form No. 1 of Appendix L to the said Rules and has to be drawn up in the manner prescribed by Order 41, Rule 1 of the Civil P. C. and presented with a copy of the decree appealed from. Under Section 12 (2) of the Limitation Act the day on which the judgment complained of was pronounced and the lime requisite for obtaining a copy of the decree appealed from have to be excluded in computing the period of limitation. Under 0. 41, Rule 1 of the Civil P. C. the memorandum of appeal must be accompanied by a copy of the decree appealed from and (unless the Appellate Court dispenses therewith) of the judgment on which it is founded. It is the usual practice of this Court especially when stay of execution is asked to allow a memorandum of appeal to be filed without a certified copy of the decree on the undertaking of the appellant to file it as soon as the same is obtained. In this case we were Informed that the certified copy was not available before February 1, 1963. This however does not and cannot mean that the appeal Is to be treated as one which could not have been filed before February 1, 1963 because long before that date the appellant was allowed leave to file the memorandum of appeal and obtain an interim order restraining the plaintiff from executing the decree. But for the Interim order made on 16-8-62, the plaintiffs' legal representatives might have withdrawn the money long ago rendering the appeal Infrucluous. We must therefore proceed on the basis that the appeal was filed on August 16, 1962 and then determine whether the appellant can be excused for the delay in making the application fcr bringing the representatives of the deceased plaintiff on record.
6. Under Order 22, Rule 11 of the Civil P. C. the words 'plaintiff, 'defendant' and 'suit' in the said order are toinclude an 'appellant', a 'respondent' and an 'appeal' respectively. By virtue of Order 22, Rule 4 when one oi two or more respondents dies and full relief cannot be had from the surviving respondents alone the Court must on an application made in that behalf cause the legal representatives of the deceased respondent to be made a party and proceed with the appeal. By virtue of Sub-rule (3) of Rule 4 where no application is made under Sub-rule (1) within the time limited by law the appeal shall abate as against the deceased respondent, if this rule applies to the present appeal it must be held that the appellant has not been able to make out a case that he had sufficient cause for not preferring an appeal within the period allowed by law under Section 5 of the Limitation Act.
7. As against this it was argued by learned advocate for the appellant that Order 22, Rule 4 read with Rule 11 did not apply to a case where the respondent had died before the filing of the appeal and where the Court finds that an appeal has been preferred against a respondent who is already dead it can order necessary amendments to be made under Section 153 of the Civil P. C. Section 153 empowers the Court, on such terms as to costs or otherwise as it may think fit, to amend any defect or error in any proceeding in a suit at any time and all necessary amendments may be made for the purpose of determining the real question or issue raised by or depending on such proceeding. It was argued that the memorandum of appeal showing a dead person as one of the respondents was a defect in the proceeding and could be put right by the Court under the powers given by this section. Reference was made in this connection to a judgment of a full bench of the Madras High Court in Gopala Krishnayya v. Abivi Lakshmana Rao, ILR 49 Mad 18 : (AIR 1925 Mad 1210) (FB). There the Court was of opinion 'that where an appeal was presented against a person who was dead at the date of presentation the Court may permit the cause title to be amended under Section 153 or return the document for amendment and representation' for if the appeal memorandum was not allowed to be amended the appellant might apply for a refund of the spoilt stamp and file a fresh appeal. In ordinary cases where the appellant is not guilty of any laches and asks for amendment of the memorandum as soon as he comes to know that a respondent had died before the filing of the appeal no objection might be raised thereto. The full bench did not approve of the earlier division bench judgment in Govinda Kavira Purohita v. Gauranga Saw, AIR 1924 Mad 56 where the Court refused to exercise power under Section 153 while another course, e.g., of filing another appeal and having the delay due to mistake committed in good faith condoned, was open to the appellant.
8. The situation arising on the death of a respondent before the institution of the appeal impleading him came up for consideration by the Federal Court in Bank of Commerce Ltd. Khulna v. Protab Chandra Ghose . There one Amal Krishna Ghose died on 8-9-44, and an appeal was filed in the Federal Court on 29-9-44 with his name on the record as a respondent. When notice of the appeal was attempted to be served on him it was reported that he had died. The appellant's agent at Delhi informed the appellant at Calcutta of the death of the respondent by letter dated 9-1-45. On 23-1-45 the managing director of the appellant wrote to the company's advocate at Calcutta to take the necessary steps. A petition for substitution was filed in this Court on 6-2-45. By an order dated 22-3-45 the High Court reported that Sushila Bala Ghose was the proper person to be substituted in the place nf Amal Krishna Ghose but the learned Judges of the Division Bench were of the opinion that there was no reason forexcusing the delay in filing the application. When the matter came up for hearing before the Federal Court on receipt of the report of the High Court on 5-11-45, it was noticed for the first time that Amal Krishna Ghose had died before the appeal was filed and not thereafter. The application was dismissed as misconceived. On 15-11-45 a fresh application was made before the Federal Court for having the name of Sushila Bala Ghose entered as a respondent to the appeal in place of her son. According to the Federal Court
'the matter has in effect to be dealt with on the footing that so far as the heir of Amal Krishna Ghose is concerned, an appeal is for the first time being preferred now.'
Two contentions were raised on behalf of Sushila Bala Ghose : (1) an application to add Amal Krishna's legal representative as a party should have been made to the high Court under Order 15, Rule 6 of Federal Court Rules and (2) no sufficient cause had been shown for not making the application or preferring the appeal within the period allowed by law.
9. Rule 6, Order 15 of the Federal Court Rules provided :
'A petition for an order of revivor or for substitution or addition of parties shall in the first instance be filed in the High Court and where it is sought to bring on record the legal representative of the deceased party, the petition shall, subject to the provisions of Sections 4 and 5 of the Indian Limitation Act, 1908, be filed within 60 days of the death of the deceased party.'
10. The Federal Court held that the case did not come in the first category because Amal Krishna Ghoss was not in the eye of the law a party to the appeal as originally preferred as he had died before and observed :
'the addition of parties referred to in the rule cannot cover the representative of a patty in whose favour a decree had been passed by the lower Court, because in such a case the proper course will be to prefer an appeal against him and not merely add him as party to an appeal that had already been preferred against other parties. That this was the intention of the rule is shown by the fact that the reference in the same rule to Section 5 of the Limitation Act is limited to applications to bring the legal representative of a deceased party on the record .....
Where an appeal has to be preferred for the first time against the heir of a person in whose favour the lower Court had passed a decree, the mere fact that the appeal had already been preferred as against other person will not justify the application being treated merely as one to add a party.'
11. On the question whether sufficient cause had been shown for not making the application earlier the Federal Court came to the conclusion that the delay had been sufficiently explained because everybody had acted on the assumption that Amal Krishna Ghose had died after the appeal had been filed.
12. The Madras Full Bench judgment was considered by a Divislen Bench of this Court in Santi Prasanna Mukherjee v. Harendra Nath Ballabh, ILR 1948 (1) Cal 25. In this case one of the plaintiffs died In October 1944 before the Trial Court passed a decree but his legal representatives were not substituted in his place. Against this decree the defendant preferred an appeal in the Court of the District Judge, 24 Parganas and a rule was issued on this Court fcr transfer of the appeal from the District Court to this Court.In the memorandum of appeal the dead plaintiff was mentioned as one of the respondents. The learned advocate appearing for the defendant appellant was informed of the death of the plaintiff on 25-1-46. The application to this Court was moved on 13-2-46. The Division Bench of this Court referred to the judgment of the Federal Court in , and observed that in view of that decision it could not allow the cause title to be amended by entering the name of the legal representatives of the dead man on the record under Section 153 of the Code of Civil Procedure. According to the Division Bench where a plaintiff had died before the presentment of the memorandum of appeal the case was not one of mere addition of parties but was in substance a casa where an appeal was being filed against the legal representatives of the dead party on the day on which the application for adding him as party respondent to the appeal was filed. The learned Judge said
'the case has to be treated on the footing of Section 5 of the Indian Limitation Act and if the Court is satisfied that there was sufficient reason within the meaning of thai section it would then and then only add the legal represen. tative as a party respondent to the appeal which had already been filed. As a matter of procedure if the conditions of Section 5 of the Limitation Act be satisfied, the memorandum of appeal already filed is to be amended by correcting the cause title.'
13. With respect, it appears to me that there is good logic and sound reasoning behind the decision in the Calcutta case. Section 153 cannot be invoked by a party who is guilty of laches to cover up his default. The powers thereunder can be exercised by the Court in a case where the defect or error which would vitiate the proceeding is not due to a party's default. A negligent carty cannot ask the Court to overlook his laches and rectify the defect.
14. The Full Bench of the Madras High Court did not lay down as a general proposition that the Court ought to exercise its power under Section 153 whenever it found that an appeal had been preferred against a person who was already dead by substituting his legal representatives. The learned Judges came to the conclusion that in a proper case powers under Section 153 could be exercised by the Court and remanded the case back to the admission Court for finding out whether there were just grounds for doing so.
15. The appellant here is certainly not to blame fcr having filed an appeal showing Jnanendra Narayan Singh Roy as a respondent when he did not have knowledge of his death but on coming to know of it he was bound to take immediate steps to find out who were the legal representatives of the deceased and to bring them on the record. It appears from a letter of his addressed to his solicitor on 20-8-62 that he had already been informed of the death and had instructed the solicitor to do whatever was necessary. The appellant seems to have taken no steps himself at any time to find out who should be brought on record but left ever/thing to his solicitor. The solicitor came to know of the heirs and legal representatives on 31-8-52 and as a diligent agent and lawyer he should then have proceeded to hava the petition drafted under the instructions already given and there was no need for him to write to the client again for further instructions. By this process a delay of at least three weeks, viz., from 21-8-62 to 15-9-62 when the attorney instructed counsel to draw the necessary petition was allowed to occur. As a solicitor for the appellant it was the duty of S. K. Guba to proceed to have the petition drawn up even before any funds were supplied tohim and as a matter of fact none appear to have been forthcoming between August 21, and September 15, 1952. The appellant must be held responsible for the delay which was caused by the solicitor's default. The engrossed petition which was despatched by S. K. Guha to the appellant at Cuttack on 20-9-62 could without difficulty have been affirmed at Cuttack before the closing of the Courts and sent back to Calcutta in time to move this Court before the long vacation. The appellant seems to have taken for granted that he could wait and have his petition moved on the reopening of the Courts in November. In my opinion, no satisfactory explanation of the delay in making the application when information of the death was received on 20 8-62 till the making of it on 19-11-62 has been given.
16. It was argued that an application like this does not come under the provisions of Order 22 and the period of limitation for making such an application is three years under Article 181 of the Limitation Act. I find myself unable to accept this contention. In view of the decision of the Federal Court and of the Division Bench of the Calcutta High Court already referred to it would be illogical to hold that while in the case of the death of a respondent after the institution of the appeal the appellant must be diligent in making an application for the substitution of his heirs and legal representatives after he comes to know of the death he will have three years from the date of such knowledge for making a similar application where the respondent was dead on the date ot the filing of the appeal. Further I cannot accept the argument that the appeal is within time as the certified copy of the decree was obtained only on 1-2-63. In order to have the time for obtaining the copy excluded the appellant will have to show that he had throughout been diligently trying to get it by putting in requisition in time to have the decree drawn up, by filing stamps for the appropriate amount after the folios were marked etc. as explained in Secretary of State for India v. Parijat Debi : AIR1932Cal331 . These data have not been disclosed nor has the application proceeded on the basis that it was properly filed after obtaining the certified copy. As already observed the appellant filed the appeal in August 1962 and was allowed to do so on condition that he put in the copy when obtained. It was on the strength of such filing that he obtained the interim order. He cannot now turn round and ask the Court to ignore whatever has gone before. The appeal must be treated as having been filed in August 1962 and the appellant must make out a case for condoning the delay in bringing the legal representatives of the deceased on the record. This he has failed to do.
17. In the result the application must be dismissed with costs. Interim order is vacated.
Bose, C. J.
18. I agree.