JUDGMENT
P.C. Misra, J.
1. This revision at the instance of defendants 1 (kha) and 2 is against the order of the Munsif, Puri, dated 6-7-1983 passed in OS. No. 35 of 1975-1 allowing substitution of the legal representatives of plaintiff No. 2. The facts relevant for the purposes of this revision are as follows: The plaintiffs in the aforesaid suit prayed for declaration of title, confirmation of possession and for injunction against the defendants in respect of certain trees standing over the suit plot. The suit was dismissed on contest by the learned trial Court by his judgment dated 12-2-1979. The unsuccessful plaintiff preferred Title Appeal No. 33/29 of 1982/1979 and the appellate Court disposed of the appeal on 1-10-1982 remanding the same to the trial Court with a direction to give findings afresh on all the issues, taking into consideration the entire evidence on record after appointment of a fresh commissioner and taking evidence, if any, adduced by both the parties after the report of the commissioner is accepted. On 16-4-1983 during the pendency of the suit in the trial Court after remand the plaintiff No, 1 came up with an application praying for substitution of the legal representatives of deceased defendant No. 3 along with petitions for setting aside abatement and for condonation of delay. As per the averments in the said petitions, defendant No 3 died on 1-7-1982 when the suit was pending in appeal and subsequent thereto the appeal was disposed of as aforesaid, as the appellate Court was not informed about his death. The reason for delay in praying for substitution has been explained by saying that defendant No. 3 died at a different village which fact was not known to the plaintiff No. 1 till 14-3 1983 when the commissioner deputed to the spot submitted a report mentioning about the death of defendant No. 3 and giving the date of death.
2. On 16-4-1983, the date on which plaintiff No. 1 filed the application for substitution, another application was filed by the wife, three sons and one daughter of deceased-plaintiff No. 2 under Order 22, Rule 9 read with Order 1, Rule 13, CPC, to set aside the order of abatement passed against plaintiff No. 2 and to substitute them or implead them in the place of plaintiff No. 2. They also filed a petition Under Section 5 of the Indian Limitation Act to condone the delay in filing this petition. The learned Munsif after hearing the parties refused the substitution prayed for in respect of the deceased-defendant No. 3 on the ground that the death having taken place during the pendency of the appeal, the trial Court would have no jurisdiction to set aside the abatement and allow the substitution. So far as the power of the legal representatives of deceased-plaintiff No 2 is concerned, the learned Munsif allowed their application relying on the decision of the Supreme Court reported in AIR 1983 S.C. 355 (Bhagwan Swaroop and Ors. v. Mool Chand and others) wherein it has been decided that a Court can allow the legal representatives of the plaintiff to be impleaded as parties under Order 1, Rule 10, CPC, by taking resort to the general provisions of the Civil Procedure Code even though there has been no substitution under Order 22, Rule A, CPC. It is against this order that this revision has been filed.
3. The admitted position as appears from the records is that plaintiff No. 2 died on 2-7-1979 and defendant No. 2 died on 1-7-1982, both dates being during the pendency of the appeal and before the appeal was disposed of by order of remand on 1-10-1982 Order 22, Rule 2 CPC, provides that where there are more plaintiffs or defendants than one, and any of them dies, and where the right to use survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants. It is not a case where on the death of plaintiff No, 2 or defendant No. 3 the right to sue survives to the plaintiff alone or against the surviving defendants alone. Rule 3 of the said order prescribes the procedure in case of death of several plaintiffs or of the sole plaintiff According to the said rule where one of the plaintiffs dies and the right to use does not service to the surviving plaintiff or plaintiffs alone, or where a sole plaintiff dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased-plaintiff to be made a party and shall proceed with the suit. The time prescribed for making such an application is 90 days according to Art. 120 of the Indian Limitation Act. Sub-rule (2) of the said Rule provides that if no application for substitution is made within the time limited by the law of limitation, the suit shall abate so far as the deceased-plaintiff is concerned. Likewise, the procedure in case of death of one of the several defendants or of the sole defendant has been provided in Rule 4 of Order 22, CPC, making identical provisions for abatement if no application is made within the time limited by law. The relevant rules of Order 22, CPC,’ made the abatement of the suit automatic and no separate order in that behalf is necessary to be passed by the Court. Rule 9 of the said Order deals with the effect of abatement for non-substitution of the legal representatives and prohibits institution of a fresh suit on the same cause of action. It however, gives right to the party affected by the order of abatement to apply for an order to set aside the abatement on the ground that he was prevented by any sufficient cause to apply for substitution within the prescribed period and it empowers the Court to set aside the abatement upon such terms as to costs or otherwise as it thinks fit. The death of plaintiff No. 2 having taken place during the pendency of the appeal and no steps for substitution having been made, the appeal had abated as against him which according to law was automatic irrespective of an order being passed to that effect by the Court. Therefore, the application for setting aside abatement could only be filed in that Court where the abatement had taken place Instead, an application was filed in the trial Court for setting aside abatement and substitution of the legal representatives of plaintiff No. 2 by his legal heirs. The learned trial Court appears to have misconceived the situation and has allowed the impletion of the legal representatives of deceased-plaintiff No. 2 as parties under Order 1, Rule 10, CPC, relying on a decision of the Supreme Court the facts of which were entirely different. In that case, the plaintiff-appellant before the High Court against a preliminary decree for partition died and his legal representatives were substituted in his place. Defendant No. 1 who was impleaded as respondent No. Tin the said appeal died on 10-2-1977 and respondent No. (original defendant No. 2) filed an application on 30-8-1981 informing about the date of death of defendant No. 1 and contended, that his heirs and legal representatives having not been substituted, the appeal abated as a whole. In the said application it was alleged that the other appellants were fully aware of the death of respondent No 1 and they having not prayed for substitution of his legal representatives, the appeal would be disposed of as having abated. At that stage the appellants moved an application on 4-9-1981 under Order 22, Rule 4, CPC, for substitution During pendency of that application, the son of deceased-respondent No. 1 also filed a petition under Order 1, Rule 10, CPC, praying that he and others mentioned in the application be impleaded as heirs and legal representatives of deceased-respondent No. 1. The High Court of Rajasthan finding that the preliminary decree was indivisible held, the appeal to have abated as a whole on account of the death of respondent No. 1 and as no substitution was made within the prescribed period. The High Court rejected the application under Order 1, Rule 10, CPC, observing that the provisions of the said rule could not override the specific provisions of Order 22, CPC. The application for substitution was also rejected which was filed long years after the death of deceased-respondent No. 1. As a consequence, the High Court disposed of the appeal as abated, as a whole. It is against that order, the matter was taken up to the Supreme Court Hon’ble Justice D. A. Desai, while observing hat when a specific provision is made as provided under Order 22, Rule 4, CPC, a resort to the general provision like Order 1,Rule 10, CPC, may not be applicable, held that the laws of procedure are devised for advancing justice and not imposing the same. Referring to an earlier decision of the Court reported in AIR 1955 S. C. 425 (Sangram Singh v. Election Tribunal, Kotah and (1983)1 S.C.C. Page 14 (Kalipar Das v. Bimal Krishna Sen) His Lordship approved the proposition that a Code of Procedure is designed to facilitate justice and further its ends; not a penal enactment for punishment and penalties; not a thing designed to trip people up. His Lordship further observed that it is the legal heirs of deceased-respondent No. 1 who were the persons vitally interested in the outcome of the appeal and could have contended that the appeal against them had abated and their share granted in the preliminary decree had become unassailable But they on the contrary wanted to be impleaded and substituted as heirs and legal representatives of deceased respondent No. 1 and that they had absolutely no grievance about the delay in bringing them on record. It is under these circumstances, His Lorship came to a conclusion that the High Court had made a hypertechnical approach which if carried to end may result to miscarriage of justice. In the facts and circumstances of that case, His Lordship held that such application have to be approached with this view whether substantial justice is done between the parties or technical rules of procedure are given precedence over doing substantial justice in Court. Hon’ble justice A. N. Sen, who was also a party to the said judgment, while agreeing with the view of Justice Desai that a Code of Procedure is designed to facilitate justice and further its ends and that it is not a penal enactment for punishment and penalties and not a thing designed to trip people up, observed that the procedural laws are no doubt devised and enacted for the purposes of advancing justice and the same are also laws enacted to be obeyed and implemented. Mis Lordship further held that the laws of procedure by themselves do not create any impediment or obstruction in the matter of doing justice to the parties, on the other hand, the main purpose and object of enacting procedural laws is to see that justice is done to the parties. In the absence of procedural laws regulating procedure as to dealing with any dispute between the parties, the cause of justice suffers and justice will be in a state of confusion and quandary. His lordship further expressed that it has to be borne in mind that procedural laws are as valid as any other law and are enacted to be observed and have not been enacted merely to be brushed aside by the Court. In the view of His Lordship, excuse of lapses in compliance with the laws of procedure as a matter of course, with the avowed object of doing substantial justice to the parties may in many many cases lead to miscarriage of justice. His Lordship however, agreed for setting aside the abatement in that particular case on the principle that in the larger interest of administration of justice, the Court may excuse or overlook a more irregularity of a trivial breach in the observation of any procedural law for doing real and substantial justice to the parties. It was not a case where the abatement had already taken place in a different Court as in the facts of this case. By allowing substitution of the legal representatives of the plaintiff No. 2 by the learned trial Court under Order 1, Rule 10, CPC. would in the facts of this case, amount to passing an order by the Court having no jurisdiction As already stated, the abatement being automatic, the appeal had abated as against plaintiff No. 2. By allowing impletion of the legal representatives under Order 1, Rule 10, CPC, by the trial.Court after remand it cannot avoid the effect of abatement of the appeal which had taken place prior to the order of remand. It has been held by Their lordships in the decision reported in AIR 1965 S.C. 1794 (Rangubai Kom Sankar Jagtap v. Sunderabai Bharatar Sakharam Jedhe and Ors. ) that the order of . substitution or impletion of parties in place of the deceased-plaintiff cannot be projected backward into the appeal that had already been disposed of as the suit after its remand in the trial Court could not be continuation of the appeal, I am, therefore, of the view that the order of the learned trial Court allowing the application under Order 1, Rule 10, CPC, in the facts and circumstances of the case, was without jurisdiction and is bound to be quashed.
4. The proper procedure to be adopted by a Court in such a situation has been indicated in the decisions reported in AIR 1972 Keral. 116 (Chovveri Abduila v. Erancherry Illath Darnodaran Namboodiri and others) which relies upon the decision of the same Court reported in AIR 1967 Kerala 135 (Meenakshy Pillavathiri Amma v. Lakshmi Amma) and the decision of Patna High Court reported in AIR 1958 Patna 278 (Bhagwat Prasad v. Bansi Mahton) and that of Calcutta High Court reported in AIR 1923 Cal 676 (Abdul Aziz v. Lakshmi Chandra Majumdar). In identical situation Their Lordships have held that where one of the parties to the appeal dies, which fact not being brought to the notice of the Court, the appeal was allowed by setting aside the decision of the trial Court and remanding the case for fresh disposal and it was brought to the notice of the trial Court after remand that the death had occurred during the pendency of the appeal, the proper procedure for the trial Court is to send the case to the appellate Court with a report who should deal with the question of setting aside abatement and substitution/impletion of the legal representatives in place of the deceased party whereafter the matter must be sent back to the trial Court for fresh disposal in accordance with the order of remand. The learned Munsif having not done, that the order of impletion of legal representatives of plaintiff No. 2 must be set aside.
5. The situation arising out of the death of defendant No. 3, however, assumes a peculiar consequence. As already staled, defendant No. 3 died on 1-7-1982 when the appeal was pending in the appellate Court and was not disposed of. The appeal was, however, disposed of on 1-10-1982 before expiry of 90 days. In the circumstances, it cannot be said that the appeal had abated as against the deceased-defendant No. 3 as the time limited by law for filing an application for substitution had not expired. In the aforesaid circumstances, the decree passed by the appellate Court cannot be held to be a nullity vide AIR 1961 Ori 85 (Kashinath Mishra and Ors. v. Lokanath Mohapatra and others) Admittedly the death of defendant No. 3 had taken place during the pendency of the appeal and in the circumstances the appellate Court would have jurisdiction to deal with the application for substitution of the legal representatives of the deceased-defendant No. 2 if sufficient cause is shown he would condone the delay, set aside the abatement and allow the substitution prayed for.
6. In the circumstances, I would allow this revision, set aside the order of the learned Munsif impugned herein and direct that the application for substitution along with a report of the learned Munsif as indicated in the decisions referred to above be sent to the appellate Court for appropriate orders to be passed whereafter the records shall be remitted back to the trial Court for fresh disposal pursuant to the order of remand in accordance with law.
Parties to bear their respective costs.