Judgment

RANGANATH MISRA, J.:- This appeal by special leave seeks to assail the decision of the Allahabad High Court in a proceeding under Article 226 of the Constitution refusing to quash an order of the IIIrd Additional District Judge, Kanpur holding that Ceiling Appeal No. 189 of 1976 under the U. P. Imposition, of Ceiling on Land Holdings Act, 1960, had abated for non-substitution of the sole appellants legal representatives.

2. The ceiling appeal in question had been carried by one Rameshwar and during its pendency the sole appellant died on January 9. 1980. Balram, Ram Bahadur and Jugal Kishore who are the three sons of Rameshwar moved the appellate Court for substitution of their names as legal representatives in place of Rameshwar on October, 25, 1980. They applied for setting aside of abatement and condonation of delay. The Additional Distt. Judge took the view that there was no sufficient cause for condonation of delay and good reasons had not been shown for vacating abatement. Accordingly the appeal was dismissed. An application under Article 226 was made before the Allahabad High Court for quashing of the appellate order. It was contended that there was no period of limitation prescribed in respect of proceedings under the U. P. Imposition of Ceiling on Land Holdings Act, 1960 (Act for short) for applying for substitution nor was there any period prescribed in R. 3 of 0. XXII of the Civil P. C. (Code for short) which became applicable in view of Section 38 of the Act. Therefore, on the expiry of 90 days from the date of death of Rameshwar no abatement set in and the application for substitution made on October 25, 1980 could not have been rejected as being barred by limitation. The High Court referred to Section 38 (1) of the Act and to Rr. 3, 9 and 11 of O. XXII of the Code and held that Article 120 of the First Schedule of the Limitation Act, 1963, was applicable and the petition for substitution should have been filed within 90 days from the date of death. The writ application was, therefore, dismissed.

3. The decision of the Allahabad High Court is assailed before this Court. When on the special leave petition notice was given it was indicated that the case would be disposed of on merits. The respondents have however, not appeared to contest.

4. Mr. Sen appearing in support of the appeal says that Section 38 (1) of the Act makes it clear that the procedure in the Code has been made applicable for hearing and disposal of appeals. Under Section 42 of the Act, Sections 4. 5 and 12 of the Limitation Act. 1963, have been made applicable to proceedings including appeals under the Act. According to Mr. Sen, in view of the provisions in Sections 38 and 42 of the Act the appellate authority and the High Court should have accepted the contention of the appellants that the Code was applied only for the disposal of appeals and the provisions of the Limitation Act excepting Ss. 4. 5 and 12 were not applicable to proceedings under the Act.

5. Section 38 (1) of the Act provides :

"In hearing and deciding an appeal under this Act, the appellate Court shall have all the powers and the privileges of a Civil Court and follow the procedure for the hearing and disposal of appeals laid down in the code of Civil Procedure, 1908."

6. Under the Code when death occurs at an appellate stage, substitution is effected in accordance with the procedure laid down in Order XXII. In terms of sub-s. (1) of Section 38 of the Act, if death occurred of one of the parties at the appellate stage of a Ceiling Appeal, substitution has also to be made according to the procedure laid down in O. XXII of the Code. R. 3 of O. XXII of the Code provides: "(1) where one of two or more plaintiffs dies and the right to sue does not survive to the surviving plaintiff or plaintiff alone or a sole plaintiff or sole surviving plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representatives of the deceased