1. In this case leave to appeal to His Majesty in Council has been granted and the final order for admission made, but the transcript of the record has not yet been transmitted to England. It now appears that Harolal Chowdhury, Joygobindo Chowdhury, Newalal Chowdhury and Manilal Chowdhury some of the respondents in the appeal, have died. Harolal is alleged to have died on the 8th January, 1908. Joygobindo on the 23rd January, 1908, Newalal on the 18th January 1908, and Manilal in December 1908. No steps in this Court have been taken up, till recently, by the appellants to bring the legal representatives of these respondents on the record. But while proceedings were pending before the District Judge who under the orders of this Court, enquired into the sufficiency of the security bond tendered by the appellants, the matter was brought to the notice of the appellants on the 9th August. 1908, and they got the legal representatives substituted for the purpose of the enquiry before the District Judge on the 15th August 1908. The respondents have now applied to this Court for an order declaring that the appeal has abated under Order 22 Rule 4 of the Code of 1908. The appellants on the other hand have in answer made an application for substitution of the legal representatives of the deceased respondents. To the grant of this application, objection has been taken on behalf of the respondents that the proper application to make is one to set aside the abatement under Order 22 Rule 9, that any application for substitution ought to have been made within six months from the death of the respective respondents under Article 177 of the second Schedule of the Limitation Act and that sufficient cause has not been shown for extension of the time under Section 5 of the Limitation Act which is made applicable to an application to set aside an abatement under Clause 3 of Rule 9 of Order 22. It has further been argued, somewhat inconsistently by both sides, that as the appeal has been finally admitted, this Court has no jurisdiction to deal with either application. This latter point must obviously be considered first.
2. It has been argued in support of the preliminary objection that after an appeal has been finally admitted, the powers of this Court are defined by Order 45 Rule 13, and that as the matter now before this Court is not covered by that rule, it is incompetent to this Court to make an order of any description. There can be no question that this contention is opposed to what has been the settled practice of this Court as recognised by their Lordships of the Judicial Committee. After an appeal has been finally admitted, before the transcript of the record is transmitted to England, this Court has always exercised jurisdiction over the appeal. It is sufficient to refer to the cases of Bishnu Dutt Chobey v. Lilabati Misrani P.C. App. 41 of 1997 unreported and Mir Sarbarjan v. Fakiruddin P.C. App. 2 of 1907 unreported, where this Court directed stay of execution of decree; Kali Prosad v. Girdharilal P.C. App. 33 of 1907 unreported and Girdharilal v. Meghlal P.C. App. 6 of 1907 unreported, where this Court directed substitution of the legal representatives of the deceased parties to the appeal; Jiabarham v. Jiban Ram P.C. App. 1 of 1907 unreported, where this Court directed the addition of parties to the appeal, and Amritalal v. Jotindra Nath P.C. App. 12 of 1907 unreported, Tripati v. Jibankishore P.C. App. 24 of 1907 unreported and Deo Narain v. Nursing Singh P.C. App. 45; 43 and 61 of 1906 unreported, where this Court allowed appeals to be withdrawn. This practice is supported by the decision of their Lordships of the Judicial Committee in Gangadhar Seal V. Sreemutty Radhamoney Dossee 6 M.I.A. 209; 9 Moore's P.C.44, in which it was held that the Judicial Committee had no jurisdiction to entertain any application in an appeal until the petition of appeal was lodged after the arrival and registration of the transcript in the Council Office. The same view is supported by the cases of Harasunderi v. Krishna Nath (1842) Fulton 10; Gobardhan v. Mani Bibi 5 B.L.R. 76 and Thakoor Kapil Nauth Sahai v. Government 1 C. 142. On the other hand, if the transcript record has been transmitted, the application has to be presented to this Court, which is then forwarded with a report to the Judicial Committee for final disposal. It is sufficient to refer in this connection to the case of Haidar Ali v. Tasadduk Rasul 16 I.A. 209; 16 C. 184. The procedure indicated in this case was followed in the case of Ram Chandra v. Rani Keshabati P.C. App. 22 of 1905 unreported, where application was made for appointment of a guardian ad litem of an infant respondent and for the purpose of addition of new parties as respondents; Gopal Prosad v. Raja Raghu Nath P.C. App. 14 of 1905 unreported where application was made for substitution of parties and for compromise of the matters in dispute in the appeal; Peary Mohan v. Narendra P.C. App. 38 of 1905 unreported, where application was made for amendment of the transcript record; and Abhiram v. Shama Charan P.C. App. 23 of 1906 unreported, where application was made for substitution of the legal representatives of one of the deceased parties. It may be pointed out that the earlier practice of the Judicial Committee in these and analogous matters was not quite uniform. Thus in the cases of Richards Spooner v. Juddow 4 M.I.A. 353; 6 Moore's P.C. 257 and Babu Kasi Persad Narain v. Musammat Kawalbasi Kooer 5 M.I.A. 146 the Courts in India appear to have actually substituted the legal representatives on the record in place of the party who had died, while in the cases of Raja Sutti Charan Ghosal v. Sri Mudden Kishore Indoo 5 M.I.A. 107; Gooroo Churn Sein v. Radanath Sein 7 M.I.A. 1; Troup v. East India Company 7 M.I.A.104 and Gobind Chunder Sein v. Valentine Ryan 9 M.I.A. 140 the applications for substitution and revival appear to have been presented to the Judicial Committee direct and entertained by them. The practice, however, must now be taken to be well-settled, namely, that as proper evidence must be given of the representative character of the persons by or against whom the reviver is sought, the title ought to be established upon petition to the Indian Court, which thereupon makes any enquiries which it may deem necessary and orders the petition to be transmitted to England for such order as the Judicial Committee may think fit to make. Reference may in this connection be made to the case of Gour Mohun Chakerbati v. Tarn Sunderi Debi 17 C. 639 where after the transmission of an appeal to England, the appellant obtained leave in the High Court to withdraw it. Thereupon an infant, a party to the suit whose rights were involved, applied to the High Court for leave to prosecute the appeal. This was refused on the ground that it was for they Lordships of the Judicial Committee and not for the High Court to dispose of the matter. On behalf of the infant an application was subsequently presented to the Judicial Committee, and leave was granted to the petitioner to carry on the appeal. We must take it, therefore, that as in the present case, the record has not yet been transmitted to England, it is competent to this Court to deal with the applications which have been presented.
3. Now, so far as the merits of the applications are concerned, it is fairly clear that the appellants had no knowledge of the death of three of the respondents till the matter was reported to them in the course of the investigation of the sufficiency of the security. They at once took steps to have the legal representatives brought on the record before the District Judge, apparently for the purpose of the enquiry before him. This was, perhaps, not quite regular, because the District Judge who had been directed to report upon the security, had not seisin of the appeal and had no jurisdiction to make the order for substitution. The parties substituted, however, did not take exception to the course which was adopted, and did not urge that the application for substitution must be presented to this Court and orders thereupon passed here. In substance, therefore, the legal representatives of three of the respondents have been brought on the record and they have allowed themselves to be treated as if they have been made parties by a valid order of a competent Court. It is desirable, however, that to avoid all objections of a technical character, an order for substitution should now be made by this Court. So far as Manilal Chowdhury is concerned, he is stated to have died in December, 1908. There is nothing to indicate when the fact of his death came to the knowledge of the appellants; but it is clear that as soon as the respondents presented their application on the 13th July, 1909, for an order that the appeal has abated, the appellants presented their application on the 26th July to bring on the record the heirs of the deceased respondents. It is contended under these circumstances by the learned Vakil for the respondent that under Order 22 Rule 4 the appeal must be taken to have abated and that application must be made under Rule 9 of that Order to set aside the abatement within the time allowed by Article 171. In our opinion, there is no substance in this contention. In the first place, Order 22 has no application to appeals to His Majesty in Council. It cannot be disputed that the Judicial Committee, in respect of procedure with regard to appeals presented to His Majesty in Council, are not limited by the provisions of the Code. In this view, no question of limitation would arise. In the second place, if Manilal died in December 1908, the appeal even if it had been an appeal pending in this Court would not abate till June 1909, and an application to set aside that abatement would be in time if made within 60 days from the date of abatement. In any view, therefore, it is clear that there is no substantial objection to the substitution of the parties on the record. We, therefore, direct that the legal representatives of all the deceased respondents be brought on the record and notices do issue on them. This order is made subject to the Rules of the Judicial Committee and any orders and directions that may be given by their Lordships in this matter at the hearing of the appeal.