IMPORTANT POINT
Remedy to appellant when he had no knowledge that the respondent had died before filing the appeal.

ORDER

1. These interlocutory applications have been filed by the petitioner in Special Leave Petition No.7735 of 2010. I.A. No. 2 of 2011 is an application for substitution of legal representatives of deceased respondent No.1. As respondent no.1 died on 09.06.2009 and the application for substitution has been filed on 05.09.2011, I.A. No.3 of 2011 has been filed for condonation of delay in filing the application for substitution of legal representatives of the deceased respondent No.1. The question which I have to decide is whether an application for substitution of a respondent who was dead when the Special Leave Petition was filed was maintainable, and if not, the remedy of the petitioner when he comes to learn that the respondent was actually dead when he filed the Special Leave Petition.

2. Learned counsel for the petitioner relied on the provisions of Order XXII of the Code of Civil Procedure, 1908 (for short “the CPC”) as well as the amendments made thereto by the High Court of Punjab and Haryana and submitted that even where the respondent was dead when the Special Leave Petition was filed, his legal heirs can be substituted under these provisions of the C.P.C. He also relied on the decisions in Bank of Commerce Ltd., Khulna v. Protab Chandra Ghose and Others [AIR (33) 1946 Federal Court 13], (Adusumilli) Gopalakrishnayya & Anr. v. Adivi Lakshmana Rao [AIR 1925 Madras 1210], H.H. Darbar Alabhai Vajsurbhai & Ors. v. Bhura Bhaya & Ors. [AIR 1937 Bombay 401], Sachindra Chandra Chakravarti v. Jnanendra Narayan Singh Roy & Anr. [AIR 1963 Calcutta 417], State of West Bengal v. Manisha Maity and Others [AIR 1965 Calcutta 459], Angadi Veettil Sreedharan vs. Cheruvalli Illath Sreedharan Embrandiri Manoor [AIR 1968 Kerala 196], Vantaku Appalanaidu & Ors. v. Peddinti Demudamma & Anr. [AIR 1982 A.P. 281], Karuppaswamy and Others v. C. Ramamurthy [AIR 1993 SC 2324] and Ram Kala v. Deputy Director (Consolidation) and Others [(1997) 7 SCC 498].

3. I have perused the aforesaid decisions cited by learned counsel for the petitioner and I find that in Bank of Commerce Ltd., Khulna vs. Protab Chandra Ghose and Others (supra), the Federal Court took the view that where an appeal has to be preferred for the first time against the legal heir of a person in whose favour the lower Court had passed a decree, the mere fact that an appeal had already been preferred as against other persons will not justify the application being treated merely as one to add a party because it is in substance an appeal preferred against him for the first time. After taking this view, the Federal Court held that an application for substitution of legal representatives of a respondent, who was dead before the filing of the appeal, must be treated as if appeal is filed for the first time against legal representatives of the deceased respondent and the delay in making the application is only to be excused under Section 5 of the Limitation Act if the delay is satisfactorily explained.

4. In (Adusumilli) Gopalakrishnayya & Anr. v. Adivi Lakshmana Rao (supra), the facts were that an appeal had been presented by the appellant against a person who was dead at the time of presentation and the Full Bench of the Madras High Court took the view that although such an appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it has full power under Section 153 of the CPC to direct an amendment of the appeal memorandum and if the appeal is out of time against the legal representatives, the Court will have to excuse the delay in presentation of the appeal before it in exercise of its discretion. The Full Bench overruled the contrary view of a Division Bench of the Madras High Court in Govind Kaviraj Purohito v. Gauranga Sa [AIR 1924 Madras 56] that an appeal filed against a dead person has to be dismissed. The Full Bench of the Madras High Court further held that Rule 6 of Order 15 of the Federal Court Rules, 1942, which dealt with su