Field and Beverley, JJ.
1. We have heard the pleader for the petitioner in this matter, and we have no doubt that under the provisions of the present law this application ought to have been made within 60 days from the date of the death of the respondent. The law as laid down in the case of Ram Sunker Bhadoory 3 C.L.R. 440 was altered by the amending Act (XII of 1879), which provided that, under Sections 363 and 365, the word 'plaintiff' is to be held to include an appellant. After this amendment of the Code further doubts arose as to whether the word 'plaintiff' in Section 366 of the Code was also to be held to include an appellant see the case of Rajamonee Dabee v. Chunder Kant Sandel I.L.R. 8 Cal. 440. There are other eases in which a similar doubt arose. These doubts were removed by the amended Section 582 of the present Code, in which it is provided that 'in chapter XXI, so far as may be, the words 'plaintiff,' 'defendant' and 'suit' shall be held to include an appellant, a respondent, and an appeal, respectively, in proceedings arising out of the death, marriage, or insolvency of parties to an appeal.' Looking at the express provisions of Section 3 of the present Code, we think that the term 'Code' in Article 171B, Schedule II of the Limitation Act, must apply to the present Code (Act XIV of 1882), and this being so Section 368 must be read with Section 582, and the word 'defendant ' in Section 368 must be held to include a respondent.
[With reference to the question whether the particular facts, as first alleged, were sufficient to explain the reason why the application was made beyond the time allowed by law, the Court directed the appeal to abate, unless the appellant should satisfy the Court by stronger facts on affidavit, that he had sufficient cause for the delay, and on the 13th February 1885 the appellant complied with this order, and the Court considering the facts then alleged (as set out in the body of the report) were sufficient to warrant the delay, made the order of substitution asked1 for. subject to any objection that might be made thereto at the hearing of the appeal.]