JAIN, J.—This second appeal was filed against Chand Mohammed. Chand Mohammed had died during the pendency of the first appeal in the lower appellate Court and his legal representatives had been brought on record by mistake the cause title in the lower appellate court was not amended and the decree sheet drawn mentioned the name of Chand Mohammed as appellant instead of his legal representatives. This error resulted into filing the appeal by H. M. Parikh against Chand Mohammed, a dead person. Notice of this appeal was received by Seikh Mohammed son of the deceased Chand Mohammed, but it was stated that Chand Mohammed had died. On 26-3 1974 when the case was fixed in the office for service Mr. Parikh came to know of this fact. After inquiry from his client he filed an application on 27-3-1974 for deleting the name of Chand Mohammed and for impleading the names of his legal representatves as respondents in the appeal. The application under sec. 5 of the Limitation Act was also submitted for condonation of delay. Mr. Parikh also submitted an affidavit in support of his contention that the name of Chand Mohammed had been shown as respondent on account of the decree-sheet supplied to his client by the lower appellate Court.

2. This application has been opposed. The contention on behalf of the legal representatives of the deceased is that the appeal against the dead man being a nullity this court has no jurisdiction to substitute the names of the legal representatives in place of Chand Mohammed. In support of this contention Mr. Balia has referred to the following decisions—Veerappa Chetty vs. Tindal Ponnen(l). Rampratap Brij Mohandas vs. Gavri Shanker Kashiram(2). Bai Pani Vankar vs. Madhabhai Galabhai Patel (3). Hindustan General Insurance Society Ltd. vs. Kedarnarayan (4). Municipal Council, Calicut vs. Thazhel Puthan Purayil Kunhipathuma(5). Parameswara Iyer Krishna Iyer vs. Krishna Iyer Venkitachalam Iyer(6). Abdul Wahed vs. Shukdev Wast (7). On the other hand Mr. Parikh has placed reliance on the following decisions—Gopalakrishnayya vs. Adivi Lakshmana Rao (8). H.H. Darbar Alabhai Vajsurbhai vs. Bhura Bhaya(9). Doddamallappa Channabasappa Kari vs. Gangappa Shiddappa Gulganji (10). and Jagarnath Raut vs. Commissioner of Buxar Municipality (11).

3. I have carefully considered the rival contentions and the decisions cited at the bar. There is no manner of doubt that there has been a mistake in the decree-sheet as Chand Mohammed has been shown as the appellant therein. His legal representatives have not been mentioned though they were parties in the first appeal. Learned counsel for the appellant who was entrusted to file the appeal had no reason to doubt the correctness of the decree-sheet. Thus the second appeal came to be filed against Chand Mohammed a dead person. By having submitted the application on 27-3-1974 the appeal shall be deemed to have been filed on that date. If this amend-ment had been made in time there would have been no difficulty. This has now been done after the expiry of the prescribed period of limitation. According to the submission of Mr. Balia this court has no jurisdiction to allow the appellant to amend the memo of appeal even if there is a sufficient cause. The case of Veerappa Chetty(l) has been referred to in support of this argument. Their Lordships in that case observed—

There is nothing in the Code of Civil Procedure to authorise the institution of a suit against a deceased person and the Courts have no jurisdiction to allow the plaint in such a case to be amended by substituting the names of the representatives of the deceased, even when the suit is instituted bonafide and in ignorance of the death of the defendant."

Obviously the observations were made in the context of a suit. Sec. 5 Limitation Act has no application to the filing of a suit beyond the period of limitation. That apart, the provisions of sec. 153. Civil P.C. have not been considered in this decision.

4. In the Bombay case of Rampratab

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