Holding

Section 38(1) of the U.P. Imposition of Ceiling on Land Holdings Act, 1960 extends the entire CPC procedure to appeals under the Act, making the limitation periods of the Limitation Act applicable, and the substitution application filed beyond the prescribed period cannot be condoned.

Summary

The appellants sought substitution of the deceased sole appellant's legal representatives, setting aside of abatement, and condonation of delay in a ceiling appeal under the U.P. Imposition of Ceiling on Land Holdings Act, 1960. The Additional District Judge dismissed the application, and the High Court upheld the dismissal, applying Article 120 of the Limitation Act, 1963, which requires a substitution application within 90 days of death. The Supreme Court held that Section 38(1) of the Act extends the entire procedure of the Code of Civil Procedure to appeals under the Act, thereby making the provisions of Order XXII of the CPC and the relevant limitation periods (Articles 120 and 121 of the Limitation Act) applicable. Since the substitution application was filed more than 150 days after the appellant's death, the Court found no sufficient cause for condonation and affirmed the abatement. Consequently, the appeal was dismissed.

Issues considered

Whether the procedure of the Code of Civil Procedure, 1908, applies to appeals under the U.P. Imposition of Ceiling on Land Holdings Act, 1960.
Whether the Limitation Act, 1963, particularly Articles 120 and 121, applies to applications for substitution of legal representatives and setting aside abatement in such appeals.
Whether the delay in filing the substitution application can be condoned.

Legislation cited

Code of Civil Procedure, 1908s. Order XXII, s. Rule 11, s. Rule 3, s. Rule 9
Limitation Act, 1963s. 12, s. 4, s. 5, s. First Schedule Article 120, s. First Schedule Article 121
U.P. Imposition of Ceiling on Land Holdings Act, 1960s. 38, s. 42

Subjects

Appeal procedureSubstitution of legal representativesAbatementLimitation periodCivil Procedure CodeLimitation ActU.P. Imposition of Ceiling on Land Holdings ActSection 38Section 42Order XXII

Judgment

734
BALRAM & OTHERS
A
v.

THE HIRD ADDITIONAL DISTRICT. JUDGE & ANR.

B 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
c under the Act~-rVhcther attracts entire procedure of the 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 abate-
ment and condonation of delay and for substitulion of their names as ]egal
D 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
E 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
F Act. Dismissing the appeal.

HELD : Section 38(1) of the Act clearly extends 1he procedure applic-
able to appeals under the Code to appeal::. under the Act. The extension of
the __.procedure available under the Code to <ippeals under the Act attracts the.
entire procedure of the Code relevant for the purpose of disposing of an appeal
G under the Act. There is no substance in the contention that the principles of
abatement and delay were not applicable to the instant case. [738 C~D]

Under the Code. when death occurs at an appellate stage, substitution
is effected in accordance with the procedure laid down in Order XXII. In
H terms of section 34(1) of the Act. if death occurred of one of the parties at the
appellate stage of a ceiling appeal, substitution had aho to be made according
to the procedure laid down in 0. XXII of the Code. Rule 11 or Order XXII
indicates that the provisions of the Code do apply to appeals. [737 B]
llALRAM v. 1iiRD ADD. DiSTT. JUDGE (kanganath Misra, J.) 135.
Again under Rule 3(2) of Order XXII if no application is made under
sub-rule (I) within the time limited by law the suit shall abate. Time has been A
limited by law in Article 120 of the First Schedule of the Limitation Act which
7 ... provides that an application under the Code to have the legal representatives
of the deceased appellant made a party has to be 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 ..
. [737 E-G]
B
If the Code and the Limitation Act applied at the time when the applica-
tion for substitution was made, the legal reprcrcntatives had to ask for
substitution, setting aside of abatement and condonation of delay in term of
rule 9(3) of Order XXII of the Code. There is little room to dispute that if
Order XXII of the Code applies necessarily Articles 120 and 121 of the First
Schedule of the Limitation Act would also apply. [737 Al

In the instant case the application for substitution of the legal
c
representatives of the deceased appellant wben made, was beyond 150 days
from the date of his death and the High Court had rightly rejected the
appellants' application.

C1vIL APPELLATE JURISDICTION : Civil Appeal No. 3952 of D
1983

Appeal by Special leave from the Judgment and Order dated
the 6th October, 1982 of the Allahabad High Court in Civil Misc.
Writ Petition No. 7029 of 1981.
E
A.K. Sen and Pramod Swarup for the Appellants.

O.P. Malhotra and Mrs. S.Dikshit for Respondent No. 2.

The Judgment of the Court was delivered by
F
RANGANATH MISRA, J. This appeal by special leave seeks to
assail the decision of the Allahabad High Court in a proceeding
under Article 226 of the Constitution refusing to quash an order of
the IIIrd Additional District Judge, Kanpur, holding that Ceiling
Appeal No. 189 of 1976 under the U.P. Imposition of Ceiling on G
Land Holdings Act, 1960, had abated for non-substitution of the sole
· appellant's legal representatives.

. The ceiling appeal in question had been carried by one -
Rameshwar and during its pendency the sole appellant died on H
) January 9, 1980. Bairam, Ram Bahadur and Jugal Kishore who are
the three sons of Rameshwar moved the appellate Court for substi-
tution of their names as legal representatives in place of Rameshwar
"'136 SUPREME COURT REPORTS [i983j 2 s.c.il.

on October 25, 1980. They applied for setting aside of abatement
A and condonation of delay. The Additional Distt. Judge took the view
that there was no sufficient cause for condonation of delay and good
reasons had not been shown for vacating abatement. Accordingly the
appeal was dismissed. An application under Art. 226 was made
before the Allahabad "High Court for quashing of the appellate order.
It was contended that there was no period of limitation prescribed
B
in respect of proceedings under the U.P. Imposition of Ceiling on
Land Holdings Act, 1960 ('Act' for short) for applying for substitu-
tion, nor was there any period prescribed in Rule 3 of Order XXll
of the Code of Civil Procedure ('Code' for short) which became
applicable in view of s. 38 of the Act. Therefore, on the expiry of
c 90 days from the date of death of Rameshwar no abatement set in
and the application for substitution made on October 25, 1980 could
not have been rejected as being barred by limitation. The High Court
referred to s. 38 (I) of the Act and to Rules 3, 9 and 11 of Order
XXII of the Code and held that Article 120 of the First Schedµle of
the Limitation Act, 1963, was applicable and the petition for substi- ·
D tution should have been filed within 90 days from the date of death.
The writ application was, therefore, dismissed.

The decision of the Allahabad High Court is assailed before
this Court. Whe11 on the special leave petition notice was given it was
E indicated that the case would be disposed of on merits. The respon-
dents have, however, not appeared to contest.

Mr. Sen appearing in support of the appeal says that s. 38 (I)
of the Act makes it clear that the procedure in the Code has been
made applicable for hearing and disposal of appeals. Under s. 42 of
F the Act, sections 4, 5 and 12 of the Limitation Act, 1963, have been
made applicable to proceedings including appeals under the Act.
According to Mr. Sen, in view of the provisions in ss. 38 and 42 of
the Act the appellate authority and the High Court should have
accepted the contention of the appellants that the Code was applied
G only for the disposal of appeals and the provisions of the Limita-
tion Act excepting ss. 4, 5 and 12 were not applicable to proceedings
under the Act.

Section 38 (I) of the Act provides :
H
"In hearing and deciding an appeal under this Act,
the appeallate court shall have all the powers and the
privileges of a civil court and follow the procedure for the
liAlRAM v. IIIRD ADD. DISTT. JUDGE (11.anganath Misra, J.) 137

hearing and ·disposal of appeals laid down in the Code of
Civil Procedure, 1908". A

Under the Code when death occurs at an appellate stage,
substitution is effected in accordance with the procedure laid down
in Order XXII. In.terms of sub-s. (I) of s. 38 of the Act, if death
occurred of one of the parties at the appellate stage of a Ceiling B
Appeal, substitution had also to be made according to the procedure
!~id down in Order XXII of the Code. Rule 3 of Order XXII of the
Code provides:"(!) where one of two or more plaintiffs dies and
the right to sue does not survive to the surviving plaintiff or plaintiffs
alone, or a sole plaintiff or sole surviving plaintiff dies and the right C
to sue survives, the Court, on an application made in that behalf,
shall cause the legal representatives of the deceased plaintiff to be
made a party and shall proceed with the suit". Rule 11 of Order
XXII of the Code indicates that the provisions of that Order do
apply to appeals.
D
There is another aspect which militates against Mr. Sen's
argument. Sub-rule (2) of rule 3 of that Order provides : "where
within the 'time ·limited by law no application is made under sub-
rule (!), the suit shall abate so far as the deceased plaintiff is con-
cerned, and, on the application of the defendant, the Court may E
award to him the costs which he may have incurred in defending the
suit, to be recovered from the estate of the deceased plaintiff".
> (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. ·
F
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 provid-
es 60 days' period for the application for an order to set aside G
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 applica-
tion for substitution was made, the legal representatives had to ask H
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
738 SUPREME COURT REPORTS (!983) 2 s.c.R.

to be vacated were matters for the appellate court .aud Mr. Sen has
A 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
B 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
C ·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
D 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.
E
The appeal fails and is dismissed without any direction for
costs.

P.B.R. Appeal dismissed.
·'