1. This was a suit to recover land, and was brought against a sole defendant. That sole defendant died on the 5th September 1880, after the institution of the suit. On the 8h November 1880, that is, sixty-three days after his death, an application, which purported to be made under Section 368 of the Code of Civil Procedure, was made to the Subordinate Judge for the purpose of having the son and heir of the deceased defendant made a defendant in his stead. On the 22nd November 1880, the Subordinate Judge, considering this application out of time, because it was not made within the sixty days allowed by Article 171B of the second schedule of the Limitation Act, XV of 1877, rejected it, and made an order that the suit do abate. On the same day, that is, the 22nd November 1880, a further application was made to the Subordinate Judge that this order, directing the suit to abate, might be set aside, on the ground that the plaintiff was prevented by sufficient cause from applying within the sixty days. There appears to have been some delay in dealing with this application, which was not disposed of till the 20th September 1881. The Subordinate Judge then found as a fact, and his finding on this point has not been questioned before us on appeal, that the plaintiff was prevented by sufficient cause from coming in within the sixty days allowed by Article 171B of the second schedule of the Limitation Act; but being of opinion that the law allowed him no discretion in the matter, he rejected the plaintiff's application although he considered the case to be a very hard one, and if he had thought himself empowered by law to grant the application, he would have granted it. The present appeal has been preferred against both orders,--that is, the order of the 22nd November 1880, as well as the order of the 20th September 1881. So far as the first of these orders is concerned, the appeal is out of time, as the appellant did not obtain the permission of the Court to file the appeal, regarded as an appeal against the order of the 22nd November 1880, after the time allowed by the law, on the ground that she was prevented by sufficient cause from presenting such appeal within the period allowed by law. The appeal may, however, be regarded as an appeal against the order of the 20th September 1881, and so regarded, it is in time. Then it is contended that no appeal will lie against the order of the 20th September 1881, because it cannot be regarded as an order under Section 371, and if it be regarded as an order under Section 372, no express provision for such an appeal is to be found in Section 588 of the Code of Civil Procedure. It appears to us that the order of the 20th September 1881 cannot be regarded as a decree' within the meaning of the amended definition in Section 2, and there being no express provision in Section 588, the present appeal will not lie. Considering, however, all the circumstances of the case, and the hardship, which, in our opinion and the opinion of the Subordinate Judge, will be inflicted on the plaintiff, if the order of the Subordinate Judge is allowed to stand, while we are strongly of opinion that he had jurisdiction to make the order which he would have made did he not feel himself debarred by the language of the Code, we think that the case is one in which we may properly exercise the jurisdiction vested in us by Section 622 of the Code of Civil Procedure, and we proceed to exercise this jurisdiction accordingly.
2. Turning now to the essential question which has to be decided, we must first observe that Section 5 of the Limitation Act (XV of 1877), which allows an appeal, or an application for review to be admitted after the period of limitation when the appellant or applicant satisfies the Court that he had sufficient cause for not presenting such appeal or making such application within such period, has no operation in respect of applications other than an application for review. Section 371 of the Code of Civil Procedure enacts, that when a suit abates, no fresh suit shall be brought on the same cause of action; but the person claiming to be the legal representative of the deceased may apply for an order to set aside the order for abatement, and if it be proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement upon such terms as to costs or otherwise as it thinks fit. Now, this section applies only to an application by a person claiming to be the legal representative of a deceased plaintiff, and who seeks, as plaintiff, to continue the suit; but it does not apply to an application by a plaintiff as against the legal representative of a deceased defendant, such plaintiff seeking to continue such suit against such representative. The section has therefore, no application in the present case. The result is that if the present case falls within Section 368, the plaintiff may lose the property to which it may happen that she has a good legal title capable of being enforced in the suit instituted by her,' and this merely because she did not apply to have the representative of the defendant substituted within sixty days after such defendant's death, although she was prevented by a reasonable cause from making her application within that time. It is possible to conceive many instances in which this reasonable cause may amount to absolute impossibility, and the result may be that considerable hardship and injustice will be done by this stringent provision which leaves the Court no discretion whatever in applying it. It can scarcely be supposed that the Legislature contemplated this result, and we are unwilling to put upon the provisions of the Code a construction which necessarily involves the imputation of such an unreasonable intention to the Legislature. It must be borne in mind, that the provision contained, in Section 371 of the Civil Procedure Code, that when a suit abates no fresh suit shall be brought upon the same cause of action, is a wide departure from the principles which have been held applicable to abatement in the Courts of Common Law and of Equity in England. In the Courts of Chancery, a suit, though perfect in its institution, becomes defective by the death or marriage, or by some change Or transmission of the interest or liability of some of the parties. In such case the suit is said to have abated or become defective. As a general rule, no proceeding whatever can be taken in it, until an order to revive the suit or carry on the proceedings has been made. Such an order is in many cases obtained on motion of course. 'Where the abatement is total, that is, caused by the death, bankruptcy, or insolvency of a single plaintiff, or the marriage of a single female plaintiff, the case is completely suspended and cannot be proceeded with until it has been revived or the defect caused by the abatement cured. Where the abatement is partial merely, as where it is caused by the death of the defendant, it prevents those proceedings only by which the interest of the deceased may be affected, for the death of the defendant makes an abatement quoad himself alone. Thus abatement, although it suspends the proceedings in a case, does not put an end to them. Therefore, where process of contempt has been executed and the defendant is in custody upon it, and afterwards the suit abates,' the defendant has been held not to be thereby entitled to his discharge out of custody. But so far as we are aware, an abatement, either in a Court of Common Law or in a Court of Equity, has never had the effect of being a bar to a further suit upon the same cause of action. One of the essentials of the principle of res judicata is, that the matter must have been determined, and when a suit has abated before judgment, nothing has been determined in such a suit. Having regard, therefore, to this very essential difference between the procedure introduced in this country and the procedure of the Courts of England, we think that it cannot have been the intention of the Legislature to apply the provisions of Section 368 of the Code, read with Article 171 B of the Limitation Act, more stringently than the provisions of the Limitation Act as to the filing of appeals and reviews of judgment. We have seen that Section 5 of the Limitation Act allows an appeal and an application for review of judgment to be admitted after time when the Court is satisfied that there was sufficient cause for not presenting it within time. We may further observe that, in Section 368 of the Amended Code, XIV of 1882, which has just been passed by the Legislature, but which comes into force on the 1st of June next, words have been added which, if they had existed in the section of the present Code, would have rendered this appeal unnecessary. We are, therefore, led to examine very carefully the provisions of Sections 368 to 372 of the Code of Civil Procedure in order that, if possible, we may put upon these sections read together a construction which will prevent that hardship which does not appear to have been intended by the Legislature. We may observe that if the present case does not fall within Section 368, it must fall within the provisions of Section 372, and as no express time is provided by the Limitation Act for applications under Section 372, the general provisions of Article 178 of Schedule ii will apply; and the plaintiff will, under this article, have three years as the period allowed for making this application.
3. Having given the matter our best consideration, we come to the conclusion that the present case is one which does not fall within the provisions of Section 368. That section, in so far as it deals with the case of the death of a sole defendant, provides that where the right to sue survives, the plaintiff may make an application to the Court to have the legal representative of the deceased defendant made a defendant in his stead. Now, what is meant by the 'right to sue surviving,' and what is the difference between this case and the cases provided for by Section 372, that is, other cases of assignment, creation or devolution of any interest pending the suit'? If we turn to Order L, Rule 1 of the Rules made under the Judicature Act, we find the following provisions: 'An action shall not become abated by reason of the marriage, death or bankruptcy of any of the parties, if the cause of action survive or continue, and shall not become defective by the assignment, creation, or devolution of any estate or title pendente lite;' and Rule 3 is as follows: 'In case of an assignment, creation or devolution of any estate or title pendente lite, an action may be continued by or against the person to or upon whom such estate or title has come or devolved.' Now, these two rules seem to draw a distinction between (i) the cause of action surviving or continuing, and (ii) the assignment, creation, or devolution of any estate or title. We think it will be found that the term 'cause of action surviving' was before the passing of the Judicature Acts generally used of cases in the Courts of Common Law, and that the idea of the assignment, creation, or devolution of an estate or title pendente lite is a familiar idea in the Courts of Chancery. In the Common Law Procedure Act, 15 and 16 Vict., cap. 76 Section 138, we find the following language: 'In case of the death of a sole defendant or sole surviving defendant, where the action survives, the plaintiff may, &c;,' and this, we may observe, is pretty nearly the language of Section 368 with which we have to deal, and in which the term 'cause of action' was used instead of 'right to sue' before the Amending Act of 1879. In the Chancery Amendment Act, 15 and 16 Vict., cap. 86, Section 52, we find the Legislature speaking of 'the change or transmission of interest or liability,' and the same language will be found used in several passages in Chap. XXXIII of Mr. Daniell's Work on Chancery Practice, which chapter deals with revivor and supplement.' At page 1388 of the 5th edition, Mr. Daniell says: 'Where a defendant, whose interest ceases on that event, dies, the suit may, it seems, be revived against the person who thereupon becomes entitled to his interest. Thus, where a defendant, a tenant-in-tail, died, the suit was revived by the common order of 'revivor and supplement' against the next tenant-in-tail. And where the interest of a defendant, a tenant-in-tail, ceases in consequence of the birth of a tenant-in-tail, whose interest precedes that of the former defendant, the suit may be revived against the new tenant-in-tail;' and at page 1381 and the following pages will be found a large number of instances taken from decided cases of this transmission or change of interest. In the Courts of Common Law, the general rule of law was actio personalis moritur cum persona; and under the principle of this rule came all actions for injuries merely personal; executors and administrators were the representatives of the temporal property,--that is, the debts and goods of the deceased, but not of their wrongs except where those wrongs operated to the temporal injury of their estate see the remarks of Lord Ellenborough in Chamberlain v. Williamson 2 M. and S. 408; see also the remarks of Brett L.J. in Twycross v. Grant L.E. 4 C.P.D. 40 at p. 46. 'Whenever a breach of contract or a tort has been committed in the lifetime of a testator, his executor is entitled to maintain an action, if it is shown upon the face of the proceedings that an injury has accrued to the personal estate.' The cause of action did not, therefore, survive in actions of assault, battery false imprisonment, deceit, or the like; and in the case of a sole plaintiff, his death put an end to the action. Then with respect to the cause of action surviving as against the legal representative of a deceased see the case of Peek v. Gurney 1. L.R. 6 H.L. 377 at p. 393. Lord Chelmsford there said: 'This is not like the cases referred to in argument of the Bishop of Winchester v. Knight 1 P. Wins. 407 and the Marquis of Landsdowne v. Marchioness of Landsdowne (l Madd., 116) where the wrong complained of benefited the estate of the testator, and on that account the executors were made liable. The same liability arises and on the same ground in Courts of Law.' As Lord Mansfield said in Hambly v. Trott 7 Hare 67: 'Where property is acquired which benefits the testator, there an action for the value of the property shall survive against the executor. As for instance, the executor shall not be chargeable for the injury done by his testator in cutting down another man's trees, but for the benefit arising to his testator for the value or sale of the trees he shall.' And Lord Chelmsford proceeded to hold that as the estate of a certain Mr. Gibbs, a party to a suit before the House of Lords, derived no benefit from the misrepresentation in which he assisted, his executors could not be made liable for the wrong done by that misrepresentation. It would not be very easy, without writing a treatise on the difference between the jurisdiction of the Courts of Common Law and the Courts of Equity in England, to define exactly those classes of cases with reference to which the use of the term cause of action surviving' was familiar to the English lawyer. But it may perhaps be said in a general way that this term was used more especially with reference to personal actions for damages, for breach of contract, and in some cases, for tort. The term 'change or devolution of interest,' or the more exact language' assignment, creation, or devolution of any estate or title pendente lite,' used in Rule 3 of Order L was, we may say, in the same general way applied to those classes of cases in which the interest in the subject-matter of the litigation passed into the hands of some other person between whom, and in the case of a defendant, the deceased defendant, there existed a legal privity. If no such privity existed, there could be no order of revivor in the Court of Chancery, and there must have been an original bill, or, as we should say in this country, a fresh suit. Applying these observations to the present case, it appears to us, that it was the intention of the Legislature, in adopting the language of the rules made under the Judicature Act, which language had an accepted meaning in English practice, to limit the application of Section 368 of the Code of Civil Procedure to cases similar in their nature to those cases in which the cause of action would have been regarded in the Courts of Common Law as surviving; and that the more general provisions of Section 372 were intended to apply to cases similar in their nature to those cases in which the Court of Chancery would have considered that there was such a change or transmission of interest as would entitle the plaintiff to an order of revivor on motion of course. The present suit, being for the recovery of land, in our opinion, falls within the latter class of cases, and the provisions of Section 372 are, therefore, applicable. In this view we are of opinion that the plaintiff has the period of three years allowed by Article 178 of the second schedule of the Limitation Act within which she can apply to substitute, instead of the deceased defendant, the person upon whom the interest of such defendant devolved upon the death of the latter.
4. The order of the Subordinate Judge, dated the 22nd November 1880, directing the suit to abate, must be reversed. We think that this is not a case in which we should make any order as to costs.
5. I concur in the judgment delivered by my learned brother, and consider that the application in the lower Court was an application properly failing within s.372 of the Civil Procedure Code and not under Section 368. Looking at the manner in which a legal representative can be put on the record under the provisions of Section 222 of Act X of 1865, and Section 38 of Act V of 1881, I am of opinion that Section 368 does not necessarily imply that there has been any transmission of interest to the person whose name is put on the record.
6. On the other hand, Section 372 refers to cases of assignment, creation, or devolution other than those mentioned in the preceding sections, when the interest devolves on the person whom it is sought to make a party--Sham Mullick v. Sreemutty Monmohinee Dassee unreported but referred to in 5 C.L.R. 109. And the application is made while the suit is pending Gocool Chunder Gossamee v. The Administrator General of Bengal. I.L.R. 5 Cal. 726 at p. 731; s. c 5 0. L.R. 519. In the present case both these conditions have been fulfilled. An interest different from that referred to in the sections preceding Section 372 has devolved on the person resisting this motion, and the application to place his name on the record was made in a pending suit.
7. At the first blush it might appear that Section 372 only referred to cases of assignment, creation, or devolution of interest when all the parties on the record were in existence at the time that the application was made; but in the case of Gocool Chunder Gossamee v. The Administrator-General of Bengal I.L.R. 5 Cal. 726 at p. 731; S.C. 5 C.L.R. 519 a Division Bench of this Court held, that this section applied to cases where neither party on the record was alive when the application was made. Following this decision, which is binding on me, it appears to me that, as in the present case the only party on the record consents to the application, Section 372 does apply, and that the petitioner has three years within which to make her application to the lower Court.