(Re : An application under section 151 of the Code of Civil Procedure filed by Balbhadra Singh and others)

During the pendency of this application for certificate to appeal to the Supreme Court from the appellate decree of the High Court passed in an appeal arising out of a decree in a suit, Jainath Singh, appellant 4, died. An affidavit to this effect was filed on behalf of the respondents on 16-2-72" stating therein that Jainath Singh died more than three years ago. A copy of this affidavit was served on the learned, Advocate for the appellants. Yet no step was taken for substitution of the heirs of deceased Jainath Singh until 1-11-72, when an application for substitution of his heirs mentioned in paragraph 1 was filed. It is stated in paragraph 2 of this application that earlier an affidavit had been filed on behalf of the respondents stating therein that Jainath Singh died more than three years ago but this statement was altogether false. A counter-affidavit has been filed on behalf of the respondents stating therein that the certified copy of the sale deed dated 6-12-68, which was being annexed with the counter-affidavit as annexure I, would show that Balbhadra Singh and Kamdeo singh, two sons of Jainath Singh, who are mentioned in paragraph I of the substitution application also, had executed a sale deed describing Jainath Singh, their father, as deceased. When this application was taken up for orders on 13.11.72 by this Bench, Mr. Kaushal Kishore Singh, learned Counsel for the appellants, submitted that he wanted to argue this substitution matter on the footing that Jainath Singh died before 6.12.63, as alleged by the respondents. He did not want an enquiry to be held in the matter. His submission was that the provisions of order 22 of the Civil Procedure Code, hereinafter called the Code, are not applicable in case a person who is a party to the application for certificate to appeal to the Supreme Court, dies during its pendency before grant of the certificate; after grant of certificate provisions of order XV of the Supreme Court Rules, 1966, are attracted. Learned Counsel further submitted on the basis of a Bench decision of the Allahabad High Court, The Union of India V. Seth Shanti Sarup AIR 1966 All 530 that there will be no period of limitation for filing an application for substitution of heirs of a deceased person in leave application before grant of leave.

2. As the matter was not free from difficulty, it was adjourned for further consideration. The matter has been fully agrued today and we record our views and order as below.

3. This application for certificate to appeal to the Supreme Court is an application under order 45 Rule 2 of the Code in accordance with section 109 and 110. This is not an application under Article 133 of the Constitution, as was argued on behalf of the appellants. But in our opinion, that is of no significance for the purpose of deciding the point at issue. In either event the provisions of order 22 of the Code will not apply. Rule II of that order cannot take within its ambit an application for grant of a certificate to appeal to the Supreme Court, even though the application may be one under order 45 Rule 2. In such a situation, it is plain that this court possesses inherent power to bring on record the heirs of a deceased person. It is also plain that such an inherent power cannot be exercised suomoto in accordance with section 151 of the Code, as was argued on behalf of the appellants. There must be an application for substitution of the heirs of the deceased person made on behalf of the opposite party. It is also firmly established by now that the inherent power which the Court possesses is not a power which is conferred on the court by section 151 of the, Code vide Manohar Lal Chopra V. kai Bahadur Rao Raja Seth HiraIal. AIR 1962 SO 527. In this connection reference may also be made to a Bench decision of the Calcutta High Court in Annada Prasad Mitra V. SushiI Kumar Ma