BALRAM & OTHERS v. THE IIIRD ADDITIONAL DISTRICT. JUDGE & ANR

Citation: [1983] 2 S.C.R. 734

Court: Supreme Court of India

Bench: R.S. PATHAK, RANGANATH MISRA

Case summary

There is little room to dispute that if Order XXII of the Cod'e applies necessarily Articles 120 and 121 of the First Schedule of the Limitation Act would also apply....

Judgment text

BALRAM & OTHERS v. THE HIRD ADDITIONAL DISTRICT. JUDGE & ANR. April 12, 1983 [R. S. PATHAK AND RANGANATH MISRA, JJ]. U. P. Imposition of Cdling on Land Holdings Act, 1960-Section 38(1)- Scope of--Section extends procedure applicable to appeals under CPC to appeals under the Act~-rVhcther attracts entire procedure ofthe Code. During the pendency of the ceiling appeal under the U. P. Imposition of Ceiling on Land Holdings Act, 1960, the sole appellant died on January 9, 1980, On October 25, 1980, his three sons applied for setting aside of abatement and condonation of delay and for substitulion of their names as ]egal representatives of their deceased father. The Additional· District Judge disn1issed the appeal on the view that there was no ~ufficient cause for condonation of delay and for vacating the abatement.

f 1 he High Court dismissed the appellants' Writ Petition holding that Article 110 of the First Schedule of the Limitation Act, 1963 was applicable and that therefore the petition for substitution should have been filed within 90 days from the date or death. In appeal to this Court, it was co:-itended th1,1. t in view of the provisions of sections 38 and 42 or Act, the Code or Civil Procedure 1908 applied only for the disposal of appeals and the provisions of the_ Limitation Act, 1963, excepting sections 4, S and 12, were not applicable to proceedings under the Act. Dismissing the appeal. HELD : Section 38(1) of the Act clearly extends 1he procedure applicable to appeals under the Code to appeal::. under the Act. The extension of the __. procedure available under the Code to (Emphasis is added by us by underlining the words in the provision). Obviously, time has been limited by law in Article 120 of the First ~ Schedule of the Limitation Act to which we shall presently refer.

· Article 120 of First Schedule of the Limitation Act provides that an application under the Code to have the legal representatives of the deceased appellant made a party has to be made within 90 days from the date of death of the appellant and Article 121 provides 60 days' period for the application for an order to set aside abatement from the date of abatement. It is not disputed that the application for substitutiou of the legal representatives of Rameshwar when made was beyond 150 days from the date of his death. If the Code and the Limitation Act applied at the time when the application for substitution was made, the legal representatives had to ask for substitution, setting aside of abatement and condonation of delay in terms of rule 9 (3) of Order XXII of the Code. Whether there was sufficient cause for the delay to be condoned and for abatement to be vacated were matters for the appellate court . aud Mr.

Sen has rightly not canvassed before us that discretion which vested in the appellate court had not been properly exercised. The sole ground pressed before us, as we have already stated, is as to whether to an appeal under the Act the provisions of the Code and the Limitation Act referred to above would apply. There is little room to dispute that if Order XXII of the Cod'e applies necessarily Articles 120 and 121 of the First Schedule of the Limitation Act would also apply. The contention that only three sections of the Limitation Act have been specially extended to proceedings under the Act by s. 42 thereof is of no consequence once it is held that Order XXII of the Code is applicable to appeals under the Act. Section 38 (I) of the Act in our ·view clearly extends the procedure applicable to appeals under the Code to appeals under the Act.

The extension of the procedure available under the Co de to appeals under the Act attracts the entire procedure of the Code relevant for the purpose of disposing of an appeal under the Act. There is no scope to reckon an exception unless the statute indicates any. We are, therefore, not inclined to accept the submission advanced before us by Mr. Sen that the principles of abatement and delay were not applicable to the case in question and the appellate. judge as also the High Court had gone wrong in applying the provisions of the Code and the Limitation Act to deal with the application for substitution. The appeal fails and is dismissed without any direction for costs. ·' P. B. R. Appeal dismissed.