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Report No. 89

V Appeals and Applications

21.29. Appeals and the addition of parties.- Under Order 41, rule 20, C.P.C. an appellant must implead all the parties within limitation. However Order 41, rule 20(2), C.P.C. gives power to the court to allow the impleading of a party after the expiry of limitation. The case is, of course, outside section 21, Limitation Act.

The position may be considered in some detail. A suit is instituted (in an ordinary case) when the plaint is presented to the proper officer under section 3(2) (a)(i); [Other sub-clause of section 3(2) deal with a suit by a pauper and a suit against a company]. Now, what section 21(1) provides is that, if, after the "institution of a suit" which is defined in section 3(2)(a), "a new party is added, etc.", then, as regards that new party, the suit is deemed to have been instituted when he was so made a party (subject to the proviso). In this manner, section 21(1) modifies section 3(2)(a) and makes it necessary for the plaintiff to show that even on the date of impleading the new party, the suit is within time.

21.30. It would be of interest to mention, in this context, that in one of the decisions of the Patna High Court, the following observations occur regarding section 22 of the Act of 1908 (corresponding to present section 21):

"If it were not for section 22 of the Limitation Act (1908), it could not be urged that a suit, as regards the added party should be regarded as having been instituted when he was made a party1."

1. Chandrika Roy v. Ram Kuer, AIR 1923 Pat 88.

21.31. Coming concretely to the position relating to appeals, Order 41, rule 20 of the Code of Civil Procedure, 1908 (as amended in 1976) reads as unde.-

"20. Power to adjourn hearing and direct persons appearing interested to be made responden.-

(1) Where it appears to the Court at the hearing that any person who was a party to the suit in the Court from whose decree the appeal is preferred, but who has not been made, a party to the appeal, is interested in the result of the appeal, the Court may adjourn the hearing to a future day to be fixed by the Court and direct that such person be made a respondent.

(2) No respondent shall be added under this rule, after the expiry of the period of limitation for appeal, unless the Court, for reasons to be recorded, allows that to be done, on such terms as to costs as it thinks fit."

21.32. It would thus appear that as regards the addition of parties to an appeal, where the case falls within Order 41, rule 20, that rule takes care of the situation and we do not consider it necessary to suggest any provision in section 21.

21.33. Applications.- As regards applications, would seem that although section 3 of the Limitation Act specifically deals only with applications made in the High Court by notice of motion, the principle would be the same regarding applications in general, namely, it is enough if the application is made within time as on date of presentation to the proper officer of the court.

The case law at present does not regard section 21 as applicable to applications. It has generally been recognised that if section 21 is regarded as applicable to applications, it would benefit the opposite party and not the applicant. The most important case is application for execution, to which also section 21 does not, at present, apply.

21.34. It is well-established that section 22 of the Act of 1908 (corresponding to present section 21) did not apply to applications, so that the addition of a party during the pendency of the application does not necessarily mean that as regards him, the application will be taken as filed only on the date of the impleading of that party. This principle has been laid down by decisions of the High Court of Calcutta, Judicial Commissioner of Nagpur and High Court of1-5 Patna.

1. Indu Bhushan v. Hari Charan, AIR 1931 Cal 385 (387).

2. Amolakrao v. Govindrao, AIR 1919 Nag 150.

3. Gulab Kuer v. Syed Mohammed Zaffar, AIR 1921 Pat 180.

4. Chandrika Roy v. Ram Kuer, AIR 1923 Pat 88.

5. See also Zahurul Hussain v. Badi Narain, AIR 1930 All 597.

21.35. In a Kerala case1, present section 21 has been held to be inapplicable to a petition for revision.

1. Rugmani v. Challappa Rawther, 1969 Ker LT 789.

21.36. Applications to be brought within section 21.- We think that section 21(1) should be amended so as to bring applications within its scope by an express provision. This will settle the position.

The Limitation Act, 1963 Back

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