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1952 Supreme(Nagpur) 49
HIGH COURT OF NAGPUR
Sinha, Mudholkar
SHOP OF BHAI GANESHRAM BALBHADRA AND ANOTHER – Appellant
Versus
FIRM MANGILAL BALKISAN AND OTHERS – Respondent
First Appeal No. 116 of 1945
Decided on : 17-04-1952
K G Chendke, M R Bobde, N P Dwivedi, Advocates
Order 22, Rule 3 of the Civil Procedure Code applies to the case where a sole appellant dies and the right to sue survives. Rule 10 is a residuary rule and applies only when Rules 2, 3, 4, 6, 7 and 8 do not apply.
Headnote:
CIVIL PROCEDURE CODE - ORDER 22, RULE 3 - ABATEMENT OF APPEAL - SOLE APPELLANT DIES - NO APPLICATION FOR SUBSTITUTION WITHIN TIME - APPEAL ABATES - ORDER 22, RULE 10 - RESIDUARY RULE - NOT APPLICABLE.
Fact of the Case:
Balbhadra, the sole appellant, died on 23-6-1950. An application was made on 8-11-1951 by his sons under Order 22, Rule 10, read with Order 1, rule 10 and Sections 146, 151 and 153 of the Civil Procedure Code, for removal of the name of Balbhadra and substitution of the name of his eldest son on the ground that he is the manager of the joint family on the death of the father.
Finding of the Court:
The appeal has abated as the application for substitution was not made within the time allowed by law.
Issues: Whether Order 22, Rule 3 or Rule 10 applies to the facts of the case.
Ratio Decidendi: Order 22, Rule 3 of the Civil Procedure Code applies to the case where a sole appellant dies and the right to sue survives. Rule 10 is a residuary rule and applies only when Rules 2, 3, 4, 6, 7 and 8 do not apply. In this case, Rule 3 applies as the right to continue the appeal survives to the surviving members of the family, which the deceased sole appellant represented.
Final Decision: The appeal is dismissed as abated with costs to the non-applicants.
1. The appellant Balbhadra died on 23-6-1950. An application was made on 8-11-1951 by his sons under Order 22, Rule 10, read with Order 1, rule 10 and Sections 146, 151 and 153 of the Civil Procedure Code, for removal of the name of Balbhadra and substitution of the name of his eldest son on the ground that he is the manager of the joint family on the death of the father.
2. The plaintiff-respondent had instituted the suit, out of which this appeal arises, for the price of goods supplied, against the shop "Bhai Ganeshram Balbhadra" and against Balbhadra as manager of the joint Hindu family and its business. Neither the joint family as such nor the name in which the joint family carried on business could be sued. The suit in substance was that Balbhadra who dealt with the plaintiff could by his acts bind the family as he was the manager of the joint family and its business. The appeal is in substance though not in form by Balbhadra as manager representing the family. He disputed the liability for the alleged transactions.
3. Under Order 22, Rule 3, read with Rule 11, when a sole appellant dies and the right to sue survives, the Court on an application made in that behalf shall cause the legal representatives of the deceased appellant to be made parties and shall proceed with the appeal. Where within the time limited by law no such application is made, the appeal shall abate so far as the deceased appellant is concerned. Having regard to Rule 3, the appeal has no doubt abated as the application was not made within the time allowed by law.
4. The learned Counsel for the applicants, however contends that Order 22, Rule 3, has no application to this case. As Balbhadra was sued in his representative character, his interest in the appeal has, according to him, devolved on his eldest son, applicant No. 1, who has, since his death, become the manager of the family. This is therefore a case of devolution of interest which attracts Rule 10. The application under that rule is not barred by time as no limitation is prescribed.
5. The question for decision therefore is whether Rule 3 or Rule 10 of Order 22 applies to the facts of the case. Rule 10 is:
In other cases of............devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.
It appears that this rule provides for all case not falling within the scope of the previous, rules of Order 22 such as rules 2, 3, 4, 7 and 8. BHUGWAN DAS v. NILKANT . If the case is specifically provided for by any of these rules, the residuary rule should not apply. It is contended by the respondents that it would not apply to the case of a legal representative who has to claim substitution in place of the deceased appellant as the representative of his estate. "Legal representative" as defined in Section 2(11) of the Code is a person, who in law represents the estate of a deceased person, or a person who intermeddles with the estate of the deceased, GABRULAL FIRM v. THE COURT OF WARDS , or where a person sues or is sued in his representative character, the person on whom the estate devolves on the death of the party so suing or sued. For example, where, on the death of a trustee a new trustee is elected or appointed, the latter is not the legal representative of the trustee inasmuch as the estate does not devolve on him by the death of the former trustee but by virtue of his election which has no retrospective operation. See SAMINATHA PILLAI v. RAJAGOPALA MUDALIAR, 1921 AIR(Mad) 124 and KESHAB RAI v. JYOTI PROSAD, 1932 AIR(Cal) 783 at . In a suit by reversioner in respect of an estate held by a Hindu widow the reversioner plaintiff sues on behalf of the whole reversionary body. In other words, all the reversioners are represented in the suit by the plaintiff and on his death the other reversioner may be brought on record for the purpose of continuing the suit not because they a
