Laches whether could be got over.

These are applications by the State of Madras purporting to be made under Order 22, rule 10, Civil Procedure Code.

The facts are:-O.S. No. 247 of 1947 was filed in the District Munsif’s Court Hospet, by Javali Govindappa alias Rindayya firm at Hospet by Partner Surasetty Basappa against the State of Madras in the Commercial Tax Department. This Govindappa alias Rindayya died on 22nd October, 1951, at Hospet, surviving him his widow Narasamma and Surasetty Basappa died on 4th March, 1952, surving him his major son Satyanarayana Setty. This firm has ceased to function after 1949. In regard to the decree and judgment in O.S. No. 247 of 1947 a second appeal has been filed by the State of Madras in S.A. No. 886 of 1952. In regard to the decree and judgment in O.S. No. 246 of 1947 in which the plaintiff was Surasetty Basappa, A. Sivappa Firm, Kottur, and the defendant was the State of Madras, a second appeal has been filed by the State of Madras in S.A. No. 887 of 1952. C.M.P. No. 1660 of 1953 is filed in S.A. No. 887 of 1952 to bring Satyanarayana Setty as the legal representative of Surasetty Basappa as the legal representative of Sivappa. Affidavits have been filed in both these applications through the Deputy Commercial Tax Officer, Hospet, about these deaths and the department coming to know of them only in December, 1952 and praying for brining on record the legal representatives Narasamma and Satyanarayana Setty in C.M.P. No. 1659 of 1953 and Surasetty, Satyanarayana Setti and Adur Gurubasappa as the legal representatives in C.M.P. No. 1660 of 1950. These applications are opposed on two grounds viz., (a) laches and (b) the application should have been made under Order 22, rule 4, Civil Procedure Code.

In regard to the laches, it is unnecessary to go into this question now in view of the turn which these applications have taken.

In appeal when one of two or more defendants dies and the appeal is pending in a court having jurisdiction to entertain it and the right to sue survives, the application should be made under Order 22, rule 4, Civil Procedure Code. But this application cannot be filed if the right to sue does not survive at all or if it survives against the surviving defendant alone in which case rule 2 alone will apply, and the application should have been filed under Order 22, rule 4, Civil Procedure Code. This application not having been filed within the time prescribed by Article 177 of the Limitation Act, the question is, has the Court power to excuse the delay and accept the application made after the period of limitation. It has been held that section 5 of the Limitation Act does not apply to an application under this rule. But an abatement can be set aside for sufficient cause under rule 9 so that in such cases the strict procedure would be to declare the appeal to have abated and to allow the plaintiff or the appellant, as the case may be, to apply under rule 9 and on sufficient cause being shown excuse the delay, set aside the abatement and bring the legal representative on record and proceed with the hearing of the appeal.

These applications will not lie under Order 22, rule 10, Civil Procedure Code, because of two reasons. First of all, the rule is a residuary one governing cases which are not provided for by the previous rules of the order so that if any of these other rules applied to the facts of a particular case, the effect of that rule cannot be got rid of by a resort to this rule. In In re Atiullah Khan1, when there was failure to bring on record the legal representatives of a deceased after abatement under rule 4 an application was made under this rule 10 to substitute a transferee and it was held that it was not maintainable. In Rajendra Prasad v. Ganga Bux Singh2, it was held that in a case where devolution takes place by reason of death and the matter falls under rule 4, rule 10 will have no application. It would be different, however, if there are two devolutions, viz., one by the death of the