& Anr Vs. Anbiah & Ors  Insc 107 (19 February 2003)
Babu & Ashok Bhan
[WITH CIVIL APPEAL NOS. 3293-94/1993, CIVIL APPEAL NOS. 1418-1420/2003 (arising
out of S.L.P. (C) NOS. 3586-3588/1998) AND CIVIL APPEAL NOS. 1422- 1424/2003
(arising out of SLP (C) NOS. 3258-3260/2003 - CC 2523-2525/1998)] RAJENDRA
BABU, J. :
in O.S No.1 of 1960 was filed under Order 1 of Rule 8 of the Code of Civil
Procedure for a declaration in respect of 456 London Mission Churches and its properties as belonging to London Mission
Christians and for injunction and in respect of certain other properties for
recovery of possession. During the pendency of the suit, Plaintiff No.2 died.
The suit was dismissed on 1.4.1967 on the ground that it was not maintainable
as plaintiffs had not obtained the consent of the Advocate General under
Section 92 of the Code of Civil Procedure to prosecute the suit. However, on
merits, it was held that there was a valid merger of London Mission Society Churches
with the SIUC and thereafter SIUC Churches with CSI.
the said decision in the said suit, an appeal was preferred by plaintiffs Nos.
1, 3 and 5. Plaintiff No.4 did not join as an appellant. He was impleaded as
one of the respondents. During pendency of the appeal, all the appellants died.
Two persons, Anbiah & Dharmakhan, filed an application for bringing them as
LRs of appellant No.4 in CMP No.13928 to 13931/1974 on 13.3.1974. They also
filed another application to set aside the abatement and to condone the delay
in seeking to set aside the abatement. These applications were dismissed on the
ground that the applicants did not deliberately take steps to continue the
appeal; that no sufficient reasons have been shown for condoning the delay and that
the only reason given appeared to be incorrect and, thus, the appeal was
dismissed for non-prosecution by an order made on 10.12.1975. At that stage CMP
No.3180/84 was filed under Order 1 Rule 8 CPC by the present appellants to set
aside the order dated 10.12.1975 for restoration of the appeal and to implead
them as representing the members of the LMS
Churches and LM Christians on 12.12.1978. It
was accompanied by an application CMP No.10931 of 1979 filed on 9.10.1979 under
Section 5 of the Limitation Act to condone the delay in filing the CMP No.13928
to 13931 of 1974. The Division Bench of the High Court by an order made on
30.4.1991 dismissed the said application. It was noticed in the course of the
that there are no bona fides in the application as the applicants were aware of
the dismissal of the appeal long before making the application;
the appeal having been dismissed on the ground of non-prosecution and no steps
having been taken to set aside the order within time, the application is barred
the application to bring on record as LRs also stood barred by limitation
that the Petitioners were aware of the dismissal of the appeal in view of the
proceedings pending in other courts but have come to the Court with incorrect
statement of fact and, therefore, no reason for any relief to be given to them.
These appeals are filed against the aforesaid order.
remains that an application had been filed before the Court on 13.3.1974 by Anbiah
& Dharmakhan in the said appeal. The High Court after 1975 SC 371, and Ramaswamy
vs. Collector of Dindigul, 1990 II MLJ 562, set out the law correctly to the
effect that if a suit had been filed in a representative capacity, there can be
no abatement on the death of any one of the plaintiffs or the appellants; that
only Article 137 of the Limitation Act is applicable and within the period set
out therein an application for impleadment could be made inasmuch as no
particular provision is made therein as to the period within which such
application can be filed. If we reckon the time from the time the last
surviving appellant died that is from 7.10.1973, the application filed by Anbiah
& Dharmakhan was within time and, therefore, the Division Bench could not
have passed the order made on 10.12.1975 that the party concerned is not
diligent in prosecuting the appeal even on the statement of law made by the
notice that appellant No.4 died on 25.10.1970, appellant No.3 died on 1.12.1971
and appellant No.1 died on 7.10.1973. The appeal was ordered to be dismissed on
the ground that the persons interested to prosecute the appeal had not moved
within time. The dismissal for non-prosecution of the appeal by persons
interested in the matter could only be under Section 151 CPC and not under any
other provision of Order XLI of CPC. If an appeal is dismissed under Section
151 CPC, Article 122 of the Limitation Act would have no application because
when a court makes an order under Section 151 CPC it is implicit that such a
court has the power to entertain an application to set aside its order made
under Section 151 CPC. The power exercised under Section 151 CPC is ex debito justitiae.
An application invoking the inherent power of the court under Section 151 CPC
is not one which a party is required to make under any provisions of the CPC
for setting in motion the machinery of the court. Thus Article 122 of the
Limitation Act has no application to such an application.
that be the correct position, an application for restoration of the appeal
would be not by a party to the proceedings and will not fall within the scope
of Article 122 but under Article 137 of the Limitation Act. CMP No.3180/84 was
filed on 12.12.1978. Therefore, the application for setting aside the order of
dismissal of appeal and for impleadment is filed within three years from the
date of order of dismissal for non-prosecution and is thus within time.
that view of the matter, the observation of the High Court in the course of its
order under appeal that the application to come on record is hopelessly barred
by time and there was no scope to review the order made earlier in the appeal
will not be correct. We set aside the order made by the High Court on
10.12.1975 and the order dated 13.4.1991 and allow the said CMPs referred to
above with a direction for the applicants therein to be impleaded as parties in
the appeal. Thus, the appeal in A.S. No. 23/1968 stands restored and remitted
to the High Court for disposal in accordance with law.
Learned Counsel on both sides are agreed that the orders of the High Court
under challenge in Civil Appeal No.3292 of 1993, Civil Appeals (arising out of
SLP(C) No.3586-3588/1998) and Civil Appeals (arising out of SLP(C).CC
2523-2525/1998), need to be set aside and the matters be remitted to the High
Court for fresh consideration in accordance with law. In the Special Leave
Petitions leave is granted.
appeals stand allowed accordingly.