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Chanderdeo Chaube vs Megh Narain

High Court Of Judicature at Allahabad|21 July, 1932


JUDGMENT Niamatullah, J.
1. This is an application for permission to file an appeal on behalf of one Lachhman, who was painterly in the original suit and who iced between the conclusion of the hearing and. the pronouncement of the judgment in the Court below. His suit was dismissed and his legal representatives, Chanderdeo and Inderdeo, have preferred an appeal along with this application asking for leave to appeal as the legal representatives of the deceased plaintiff. The learned advocate for the respondents contests the application on the ground that it has been made more than 90 days after the death of Lachhman, a fact which is not disputed. I do not however think that the objection has any force. Order 22, Civil P.C., requires applications for substitution of a deceased plaintiff or defendant, in case any of them dies during the pendency of the suit. The provisions of that order have been made applicable to cases in which one of the appellants or respondents dies during the pendency of the appeal. There is no law to be found either in the Civil Procedure Code or elsewhere which makes it necessary that any substitution proceedings should take place where one of the parties dies between the decree and the filing of the appeal. In this case Lachhman died before the decree and would have been deemed to have died during the pendency of the suit but for Order 22, Rule 6 which provides that in such a case the judgment should be considered to have been pronounced before his death. In other words, the decree must be taken to have been passed in his lifetime. This being so, a fiction has to be introduced to the effect that Lachhman died after the decree. As already stated, no application for substitution of names is necessary where a party dies between the date of the decree and the filing of the appeal. Rule 3, Chap. 11, of the Rules of this Court, however requires an application by the legal representatives of a party dying after the decree to apply for permission to appeal if one is to be preferred. For compliance with that rule there is no limitation and all that is necessary is that the appeal itself should be filed within time. Article 176, Limitation Act, does not apply to an application of the kind contemplated by the rule above referred to. The application is accordingly allowed.
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Chanderdeo Chaube vs Megh Narain


High Court Of Judicature at Allahabad

21 July, 1932