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Judgment
Reilly, J.—These four appeals are against orders for rateable distribution of the proceeds of a sale in E.P. No. 41 of 1916 on the file of the
District Court. The appellant is the judgment-debtor. In Appeals Nos. 62, 64 and 67 of 1928 an objection has been raised by the decree-holder''s
representative that these appeals have abated. The decree-holder died in June, 1930 and no application to bring his legal representative on record
as Respondent in these appeals was made until January of this year. To that objection the judgment-debtor replies that there is no rule of
abatement in appeals against orders made in execution proceedings. It is not disputed that, in order that the judgment-debtor may proceed with
these appeals, he must bring on record some representative of the decree-holder. But it is contended for him that, as the ordinary rule of abatement
does not apply, he has a right to bring the legal representative on record at any time within three years under Article 181 of the Limitation Act.
The rules regarding abatement as a penalty for not bringing the legal representative of a deceased party on record are to be found in Order 22
of the Code of Civil Procedure. But it is contended for the judgment-debtor that the rules in that Order do not apply to such appeals as these,
because they are appeals against orders made in execution proceedings. The answer to the question whether that contention is correct depends
upon the interpretation of Rule 12 of that Order. The penalty of abatement in suits is imposed by Rules 3 and 4 of Order 22. If the representative
of a deceased plaintiff or defendant, where the suit cannot go on without such a representative being brought on record, is not brought on within
the time fixed by the Limitation Act, i.e., 90 days, the suit abates. Those rules do not directly apply to appeals, but Sections 107 and 108 of the
Code lay down that, subject to such conditions and limitations as may be prescribed, that is prescribed in Schedule I of the Code, an appellate
Court shall have the same powers and shall perform as nearly as may be the same duties as are conferred and imposed by the Code on Courts of
original jurisdiction in respect of suits instituted therein. In the application of that principle to appeals in the matters covered by Order 22 of the
Code Rule 11 of that Order provides ""So far as may be, the word ''plaintiff'' shall be held to include an appellant, the word ''defendant'' a
respondent and the word ''suit'' an appeal"". The result of those provisions so far is clearly that the rules of abatement laid down in Order 22 for
suits apply to appeals; and, if the matter ended there, it would be clear that they apply to all appeals. But it is contended that Rule 12 of Order 22
has the effect of shutting out one class of appeals from these rules of abatement, namely, appeals against orders in execution proceedings. Literally
I do not think it can be contended that Rule 12 has that effect. The words of Rule 12 are:
Nothing in Rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
Literally it does not appear to me, reading the words in their plain, grammatical sense, that an appeal against an order made in execution
proceedings is itself a proceeding in execution of a decree or order. However, it has been brought to our notice that there are decisions that Rule
12 should be read in that extended sense. In Mir Khan v. Sharfu (1923) 74 I.C. 577 a single Judge of the Lahore High Court directly decided that
to be so, though it may be remarked that he gave no reason for his decision. In Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh ILR
(1929) 9 Pat. 372 the question came before a Full Bench, and there the majority of the Judges decided that an appeal against an order made in
execution proceedings fell within Rule 12 of Order 22, and therefore the rules of abatement contained in that order did not apply to such an
appeal. The reason given by the two learned Judges who formed the majority of the Bench was that an appeal against such an order made in
execution proceedings is itself a continuation of the execution proceedings, and therefore the rule excluding execution proceedings must apply also
to such appeals. With great respect it appears to me that to say that an appeal against such an order is a continuation of execution proceedings is
not a sufficient answer to the question. The question is, not whether such an appeal is a continuation of execution proceedings, but whether such an
appeal is a proceeding in execution within the meaning of Rule 12 of the Order. An appeal against a decree in an original suit is in a sense a
continuation of the suit; but it is not the suit itself, nor is it a proceeding in the suit to which the rules of procedure for the suit necessarily apply. A
proceeding in execution is a continuation of the suit; but it is not the suit itself, nor do the rules of procedure applicable to suits necessarily apply to
execution proceedings. The third Judge of the Full Bench, Mr. Justice Das, came to the conclusion that Rule 12 of Order 22 did not apply to
appeals against orders made in execution proceedings, but that such appeals were subject to the same rules in regard to abatement as any other
appeals; and with that opinion I respectfully agree. He pointed out that in the scheme of the Code we find procedure provided for original suits in
Part I: in Part II we find procedure provided for execution proceedings: in another part of the Code, far removed, namely, Part VII, we find
procedure laid down for appeals and not laid down for one class of appeals or some classes of appeals only but for all appeals. It has to be
admitted that in no part of the Code other than Order 22 do we find any indication that appeals against orders made in execution proceedings are
to be treated as a separate class of appeals, to which any separate and different rule of procedure applies from that which applies to other appeals.
It happens that in this Court for the convenience of our work we call appeals against orders made in execution proceedings by a different name
from appeals against decrees made in original suits, and they are usually allotted to a separate Bench for disposal. But that does not show that
there is any essential difference in the nature of the appeals; nor do we apply any different procedure to them at any stage. In the mufassal there is
not even this difference of nomenclature in regard to such appeals: appeals against orders made in execution proceedings and appeals against
decrees made in original suits are all classified as one class of appeals and are registered under rules issued by this Court in one register and are
treated in exactly. the same way.
In this Court there has been no direct decision of a Bench on the question now raised. But in Sundayee Ammal v. Krishnan Chetti ILR (1928)
51 Mad. 858 : 55 M.L.J. 497, where it was decided that the legal representative of a deceased appellant can be brought on record in an appeal
against an order made in execution proceedings for the purpose of continuing the appeal, the learned Judges remarked in regard to Palaniappa
Chettiar v. Valliammai Achi ILR (1926) 50 Mad. 1 : 51 M.L.J. 745, where it was decided that legal representatives could not be brought on
record in original execution proceedings - a decision which has now been overruled by the Full Bench in Venkatachalam Chetti v. Ramaswami
Servai ILR (1931) 55 Mad. 352 : 62 M.L.J. 1 - that that case ""did not relate to the case of an appeal against an order in execution, and there are
obvious difficulties, e.g., questions of limitation, the maintainability of successive applications, etc., which will arise if the ruling is applied to cases of
appeal. We are not prepared to extend the application of the ruling to the present case and see no reason why the ordinary procedure relating to
appeals when an appellant dies should not apply."" These last words, which I have quoted, show that the learned Judges were clearly of opinion
that there was no difference between appeals against orders made in execution and other appeals in this respect, which we are now considering.
And perhaps more important than that is the long continued practice of this Court. It cannot be denied that until recent years, when we are told
there has been some occasional variation in the matter, it has long been the practice of this Court to apply the rules of abatement to appeals against
orders made in execution proceedings in exactly the same way as to other appeals. That shows that, although the question whether the rules of
abatement apply to appeals against orders made in execution proceedings has not been the subject of any reported decision, a long succession of
Judges have acted on the view that Rule 12 of Order 22 does not apply to such appeals. If we were to accept the judgment-debtor''s contention
that Rule 12 excludes such appeals? from the ordinary rules of abatement, then we should be making a very serious departure from the general
practice of this Court.
No reason has been suggested in the arguments before us why any such distinction as is alleged should be made between appeals against orders
in execution proceedings and other appeals in this matter. There are obviously good reasons why the rules of abatement should not apply to
execution proceedings in the original or executing Court. It is unnecessary, if the decree-holder does not bring a legal representative promptly on
the record in an execution proceeding, that he should be penalised for not doing so. The fact that he does not do so does not inconvenience the
Court and is not likely to inconvenience anybody but himself. And it may be noticed that it would be useless in a great majority of cases to enforce
any such rule of abatement in relation to execution petitions. If the Court were to say that, because the decree-holder had not brought a legal
representative of a deceased judgment-debtor on record within a short period, his execution petition would abate and be dismissed, he could put
in a new execution petition on the following day. On the other hand to enforce abatement in execution petitions might often have very harmful
effects. The decree-holder who found that other decree-holders were competing with him for rateable distribution might find it convenient to allow
his execution petition to abate in order that by that manoeuvre he might get rid of the competition of the other decree-holders. Those are some
among the reasons which will occur to any one why the rules of abatement are obviously inappropriate to execution petitions. But, when we turn to
appeals against orders made in execution, why should not the ordinary rules of abatement apply to them as much as to any other appeals? It is just
as inconvenient to the Court, that an appeal against an order in an execution proceeding should be kept pending, for years because the appellant
does not choose to bring on record the necessary legal representative as it is that any other appeal should be kept pending in that way. It is just as
unfair and inconvenient to a respondent, who has been successful in the Lower Court, or his representative in such an appeal that the appeal should
be kept hanging over his head for years as it would be to a party who had been successful in the Lower Court in a matter raised in any other kind
of appeal. The reasons which make it appropriate that rules of abatement should apply to appeals of any kind appear to me to make it equally
appropriate that they should apply to appeals of the kind we are considering, that is appeals against orders made in execution proceedings. Indeed
Mr. Govindaraghava Aiyar, j; who appears for the judgment-debtor in this case, has not been able to suggest any reason why the Legislature
should have drawn the distinction which he has suggested, a very important and serious distinction, between appeals against orders in execution
proceedings and other appeals. All that he was able to suggest was that this was the result of an implication in Rule 12 of Order 22, which he
suggested might have been introduced into that Order by inadvertence. Rule 12 of that Order is not a rule which has been made by any High Court
since the Code of 1908 came into force. It is a rule made by the Legislature when the Code was enacted, and I see no reason why we should
attribute any carelessness to the Legislature in the matter. I distrust all arguments based on allegations that the Legislature has done its work with
carelessness. Indeed we are not entitled to listen to any such suggestion unless we are driven to do so by some otherwise insurmountable difficulty
in interpretation. For my own part I see no such implication as is suggested in the words of Rule 12 of Order 22.
I may mention that Mr. Narasimhachari for the decree-holder drew our attention to Rule 4 of Order 23 in which words exactly similar to those
of Rule 12 of Order 22 appear. Rule 4 of Order 23 says:
Nothing in this Order shall apply to any proceedings in execution of a decree or Order,
and Rule 12 of Order 22 says:
Nothing in rules 3, 4 and 8 shall apply to proceedings in execution of a decree or order.
The words ""proceedings in execution of a decree or order "" occur in both these rules in successive orders of the Code. I do not think it can be
denied that there are some provisions in Order 23 which apply to all appeals, to appeals against orders made in execution proceedings as much as
to other appeals. The very first provision in Order 23 is that a plaintiff may withdraw his suit. That undoubtedly applies to an appellant. But, if we
were to give Rule 4 of Order 23 the same interpretation as is suggested for Rule 12 of Order 22 in regard to the words ""any proceeding in
execution of a decree or order,"" that provision regarding withdrawal would be shut out from all appeals against orders in execution. That
comparison of the two rules in successive Orders may not lead us to any conclusive result; but it is at least interesting that the Legislature should
have used the same expression in those two rules, and the judgment-debtor''s contention in this case could not be upheld unless we supposed that
expression had been used in two different ways in the two Orders, which to my mind is very unlikely.
In my opinion there is no doubt that the rules of abatement in Order 22 of the Code apply to appeals against orders made in execution
proceedings as to other appeals. If this is so, these three appeals (C.M. As. Nos. 62, 64 and 67 of 1928) abated long ago. But applications have
been made at a very late stage that the abatement may be set aside and that the delay in apply in to set it aside may be excused. The grounds
suggested for excusing the delay are that the party and his advisers were in doubt about the application of the rules of abatement to such appeals.
There was some reason to think they did not apply, as it had been so decided by a Full Bench in Hakim Syed Muhammad Taki v. Rai Fateh
Bahadur Singh ILR (1929) 9 Pat. 372. And some confusion had arisen on the question of bringing in legal representatives in matters arising from
execution generally in consequence of the decision in Palaniappa Chettiar v. Valliammai Achi ILR (1926) 50 Mad. 1 : 51 M.L.J. 745, which has
now been overruled. It has also been mentioned to us that in C.M.P. No. 3223 of 1923 19 L.W. 43 - Short Notes. Mr. Justice Waller decided
that the rules of abatement were not applicable to appeals against orders made in execution. Unfortunately no report of that case is available to us,
and we are informed that the records of the case have been destroyed. But that too might have had some effect on the course adopted by the
judgment-debtor in this case in inducing him to think that it was unnecessary to bring the decree-holder''s representative on record within the usual
time. In the circumstances I think we may excuse the delay in making the application to set aside the abatement of these appeals and set aside the
abatement accordingly and bring the decree-holder''s representative on record.
On the merits it is urged in respect of these three appeals and also C.M.A. No. 63 of 1928, in which there is no question of abatement, that the
petitions for rateable distribution, out of which the appeals arise, were time-barred when they were presented to the District Court. [His Lordship
dealt with the plea of limitation and concluded:]
In my opinion therefore C.M.As. Nos. 62 and 67 of 1928 should be dismissed with costs; but C.M.As. Nos. 63 and 64 of 1928, relating to
Execution Petitions 13 and 14 of 1922, respectively, should be remanded to the District Judge for fresh disposal. In C.M.As. Nos. 63 and 64 of
1928, as the judgment-debtor did not raise the question of limitation originally before the District Judge and in fact did not raise it until nearly three
years after the petitions were filed, and as he has delayed the hearing of these appeals by the course he has taken in failing to bring the legal
representative of the decree-holder on record, and as he has received indulgence from this Court in that matter, in my opinion he should pay the
costs of both these, appeals to the Respondent in any event.
Anantakrishna Aiyar, J.
I agree.
These miscellaneous appeals have been preferred by the Rajah of Kalahasti against the orders passed by the District Court of Chittoor by
which the learned District Judge allowed the decree-holders who are respondents in these appeals and who had obtained decrees for money in
various suits against the late Rajah of Kalahasti to share in the sale proceeds of certain properties belonging to the deceased judgment-debtor
when the said properties were sold in execution of a decree for money obtained against the same judgment-debtor by the Mahant of Tirupati. The
main contention of the appellant before us was that the execution petitions filed by the decree-holders - respondents - were barred by limitation,
and that they were not entitled to a rateable distribution of the sale proceeds in the District Court.
The decree-holder in three of these connected appeals (C.M.As. Nos. 62, 64 and 67 of 1928) died in June, 1930 and applications to bring
the legal representatives of the deceased decree-holder on record were made only in January of this year, that is long after the expiry of 90 days
from the date of the death. On behalf of the legal representatives of the deceased decree-bolder an objection was raised that these appeals have
abated under the provisions of Order 22, Civil Procedure Code, as no applications to bring the legal representatives on record in these appeals
were filed within 90 days from the date of the death of the decree-holder under Article 177 of the first schedule of the Limitation Act.
On behalf of the appellant, it was argued that as the present appeals relate to proceedings in execution of decrees Order 22, Civil Procedure
Code, was inapplicable to such proceedings, that no question of abatement arose in the cases, and that the appellant had a period of three years
under Article 181 of the Limitation Act within which he could apply to have the legal representatives of the deceased respondent brought on
record, and as the present applications were filed within that period the appeals should be heard on the merits. Reliance was also placed by the
learned advocate for the appellant on the recent decision of a Full Bench of this Court reported in Venkatachalam Chetti v. Ramaswami Servai
ILR (1931) 55 M. 352 : 62 M.L.J. 1 and on Order 22, Rule 12, Civil Procedure Code.
The question was elaborately discussed before us, and I have come to the conclusion that the appellant''s contention that Article 181 applies to
these cases is untenable, and I think that the provisions relating to abatement of appeals in cases where legal representatives of deceased parties
are not brought on record within proper time apply to appeals preferred against decisions passed in execution of decrees. The decisions in
Venkatalakshmamma v. Seshagiri Rao (1930) 60 M.L.J. 628, Ramanathan Chettiar v. Ramanathan Chettiar (1928) 30 L.W. 995, Sundayee
Ammal v. Krishnan Chetti ILR (1928) 51 Mad. 858 : 55 M.L.J. 497 and Venkatachalam Chetti v. Ramaswami Servai ILR (1931) 55 M. 352 :
62 M.L.J. 1 are all distinguishable from the present case. In all those cases, the judgment-debtor or the decree-holder died when the execution
petitions were pending in the executing Court; and having regard to the provisions of Rule 12 of Order 22 which enacts that ""nothing in Rules 3, 4
and 8 of Order 22 shall apply to proceedings in execution of a decree or order,"" it was in effect held that the rules relating to abatement of suits if
legal representatives of a deceased party to the suit had not been brought on record within the prescribed period did not apply to proceedings in
execution of a decree pending in such Courts. None of these cases related to the death of a party pending an appeal. The various inconveniences
and difficulties which would accrue if the principle of abatement relating to suits were held applicable to such execution petitions were pointed out
in those judgments, and it was also pointed out that the uniform practice of the Courts was also in favour of not applying such principle to such
execution petitions. Order 22, Rule 12, Civil Procedure Code, is only a statutory recognition of the said practice.
Mr. Govindaraghava Aiyar, the learned advocate for the appellant, however argued that after the enactment of Rule 12 of Order 22 in the
present CPC it must be taken that the principle of abatement would not apply at all to proceedings in execution of a decree or order, and he
argued that the present appeals were also proceedings in execution of a decree or order within the meaning of Rule 12. He contended that the
proceedings retained the character of ""proceedings in execution of a decree"" though they were carried to an appellate Court and that they did not
lose that characteristic simply because they were pending in an appellate Court. He submitted that as an appeal is only a continuation of the suit,
the present appeals are only a continuation of the proceedings in execution of the decrees, and he strongly relied on the decision of the Full Bench
in the case reported in Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh ILR (1929) Pat 372.
I am unable to agree with those contentions. Of course we are bound to give effect to the provisions of Rule 12 of Order 22, Civil Procedure
Code. But, in my opinion, the wordings of that rule are against the appellant''s contention. As already remarked, Rule 12 enacts that ""nothing in
rules 3, 4 and 8 of Order 22 shall apply to proceedings in execution of a decree or order"". Are the proceedings in appeal before us ""proceedings
in execution of a decree or order"" within the meaning of Rule 12? I think not. I think that the expression "" proceedings in execution of a decree"" has
a recognised and definite meaning as used in the Code of Civil Procedure. The scheme of the CPC is to treat separately of suits, execution
proceedings and appeals; Part I of the CPC deals with ""suits"" in general, Part II with ""execution"" and Part VII with ""appeals"". A survey of the
contents of the first schedule attached to the CPC also confirms this view. Order 21 relates to ""execution of decrees and orders"".
The contention'' of the appellant is opposed to the literal and grammatical construction of Rule 12. Rules 3, 4 and 8 of Order 22 relate only to
death of plaintiff or defendant pending a suit and to the insolvency of a plaintiff pending a suit. Those provisions are made inapplicable to
proceedings in execution of a decree or order. The other rules of Order 22, Civil Procedure Code, are not made inapplicable. Rule 11 implies that
the provisions of the Order are applicable to appeals, since it proceeds to enact how the rules laid down by the Order are to be applied to
appeals. Rule 11 enacts that ""in the application of this Order to appeals, so far as may be, the word ''plaintiff'' shall be held to include an appellant,
the word ''defendant'' a respondent, and the word ''suit'' an appeal."" Rule 11 therefore prima facie applies to all appeals, and appeals from orders
relating to execution of decrees are not exempted from the operation of Order 22.
It was argued that an appeal is only a continuation of a suit, and that similarly an appeal from an order relating to execution is only a
continuation of execution proceedings. Though in one sense it may be so, that is not the sense in which the Legislature has treated the matter in the
Code of Civil Procedure. If an appeal is a continuation of a suit for all purposes of the Civil Procedure Code, what is the necessity for enacting
Sections 107(2) and 108. The scheme of the Code is clear that ""subject to such conditions and limitations as may be prescribed, the appellate
Court shall have the same powers and shall perform as near as may be the same duties as are conferred and imposed by the Code on Courts of
original jurisdiction in respect of suits instituted therein"" - Section 107. See also Section 108. The circumstance that having regard to various
considerations, the principle of abatement provided for by Rules 3 and 4 of Order 22 has been made inapplicable to proceedings in execution of
decrees does not, therefore, prima facie affect any question which has to be decided with reference to an appeal. An appeal may be against a
decree passed in a suit, against an order passed in execution, or against an order from which an appeal is specifically provided for. When any
question arises with reference to an appeal, the provisions of law relating to hearing and disposal of appeals have to be looked into for guidance,
and followed. The question at that stage is not how the matter has come before the appellate Court, but as to what the powers and duties of an
appellate Court are with reference to an appeal properly brought for its adjudication.
Reference was made by the learned advocate for the respondent to Rule 4 of Order 23, where it is enacted that nothing in Order 23 shall
apply to any ""proceedings in execution of a decree or order,"" the words used being the same as in Rule 12 of Order 22. The learned advocate for
the appellant sought to make out that none of the provisions of Order 23 would apply to an appeal against an order in execution of a decree. I am
not satisfied that he has made good his contention. In my opinion, the inference, if any, to be drawn by a reference to Order 23, is rather in favour
of the view I am inclined to take regarding the procedure to be followed in such appeals.
As already mentioned, the inconveniences and difficulties in the way of applying the principle of abatement to execution proceedings pending in
the execution Court do not exist with reference to appeals from orders relating to execution. The decree-holder''s rights and privileges in the matter
of filing and prosecuting execution petitions are quite different when his rights have been adjudicated upon by one Court but are pending before a
Court of appeal. Considerations of convenience also seem to point out to the same inference as is suggested by the wordings of the provisions of
the Code. Unless law is clear on the point to the contrary, it would prima facie be unreasonable to allow an appeal to be pending in an appellate
Court for three years simply because one of the parties to the appeal is dead, and it is not a sufficient answer to be told that the appeal is from an
order relating to execution of a decree. If anything, appeals from such orders should bedisposed of as early as possible and more speedily than
appeals from decrees in suits. If in appeals from suits legal representatives, of deceased parties have to be brought on record within 90 days, why
should a longer period be provided for such purpose in case of appeals from orders passed in execution of decrees. As far as I am able to gather,
the practice of the Court (at any rate till very recently) has always been to apply the principle of abatement to all appeals, including appeals
preferred against orders in execution of decrees. With reference to death of parties in an ""original petition"" pending investigation in the first Court,
Sections 141 and 146 have been applied in the matter of bringing legal representatives of deceased parties on record, and the principle of
abatement has been applied to. such cases - see Rameshar Singh v. Bisheshar Singh ILR (1885) 7 all. 734 (a case that arose under the
corresponding provision - Section 647 of the Code of 1882) - but it is not necessary to pursue this aspect of the matter further at present.
The only decisions relating to appeals to which our attention was drawn in which the question is discussed are those reported in Sundayee
Ammal v. Krishnan Chetti ILR (1928) 51 Mad. 858 : 55 M.L.J. 497 and Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh ILR (1929)
9 Pat. 372
In Sundayee Ammal v. Krishnan Chetti ILR (1928) 51 Mad. 858 : 55 M.L.J. 497 the learned Judges Wallace and Tiruvenkatachariar, JJ.,
had a case where in a Letters Patent Appeal against an order in execution of a decree of a Subordinate Court, the legal representative of the
deceased appellant applied to be brought on record. The learned Judges held that the rule in Palaniappa Chettiar v. Valliammai Achi ILR (1926)
50 Mad. 1 : 51 M.L.J. 745 did not apply to such a case, and made the following observations : - ""The ruling in Palaniappa Chettiar v. Valliammai
Achi did not relate to the case of an appeal against an order in execution, and there are obvious difficulties, e.g., questions of limitation, the
maintainability of successive applications, etc., which will arise if the ruling is applied to cases of appeal. We are not prepared to extend the
application of the ruling to the present case, and see no reason why the ordinary procedure relating to appeals when an appellant dies should not
apply."" Those observations directly apply to the present case. The question arose in an appeal from an order passed in execution of a decree, and
the learned Judges held that ""the ordinary procedure relating to appeals when an appellant dies should apply to an appeal from an order passed in
execution of a decree"". With respect, I entirely agree.
The decision in Hakim Syed Muhammad Taki v. Rai Fateh Bahadur Singh ILR (1929) 9 Pat. 372 was by a Bench of three learned Judges.
Justice Das was of opinion that the words ""proceedings in execution"" occurring in Rule 12 did not include proceedings in an appellate Court though
the appeal was from an order passed in execution of a decree. Justice Kulwant Sahay was of a different opinion, and Justice Macpherson agreed
with Justice Kulwant Sahay. For the reasons given by the learned Judge Das, J., and for the other reasons mentioned above, I think that there is no
reason to differ from the statement of law made in Sundayee Ammal v. Krishnan Chetti ILR (1928) 51 Mad. 858 : 55 M.L.J. more especially as J;
that is in accordance with the practice followed in this Court, (as I understand it) at any rate, till very recently.
The words used in Order 22, Rule 12 and in Order 23, Rule 4 are clear and specific. In these circumstances, as observed by Lord Halsbury,
L.C, in Commissioners for Special Purposes of Income Tax v. Pemsel (1891) A.C. 531, ""I do not think it is competent to any Court to proceed
upon the assumption that the Legislature has made a mistake. Whatever the real fact may be, I think a Court of Law is bound to proceed upon the
assumption that the Legislature is an ideal person that does not make mistakes. It must be assumed that it has intended what it has said, and, I
think, any other view of the mode in which one must approach the interpretation of a Statute, would give authority for an interpretation of the
language of an Act of Parliament, which would be attended with the most serious consequences"".
In my opinion, the appellant''s contention on this point should be overruled and three of these appeals should be held to have abated in the
circumstances.
Applications have been filed to bring on record the legal representatives of the deceased respondent - decree-holder - in these appeals, and
we are asked to excuse the delay in filing the applications. An affidavit explaining the delay has been filed, and we have also heard the learned
advocates on this question. It was submitted that the practice of the Court of late has not been uniform, having regard to the decision of Waller, J.,
in C.M.P. No. 3223 of 1923, (19 L.W. - Short Notes, p. 43), and of the decision of the Patna High Court in Hakim Syed Muhammad Taki v.
Rai Fateh Bahadur Singh ILR (1929) 9 Pat. 372. We have not been able to get at the order of Waller, J., as the papers are said to have been
destroyed. In the special circumstances, I think that we should excuse the delay in the present cases and direct that the legal representatives be
brought on record as respondents in these three appeals.
No question of abatement arises in C.M.A. No. 63 of 1928.
In all these four appeals, the appellant raised a question of limitation and contended that the execution petitions were barred by limitation when
they were filed.
On the merits, C.M.As. Nos. 62 and 67 of 1928 have to be dismissed as no question of limitation was raised in the prior appeals - (C.M.As.
Nos. 155 and 159 of 1925, which were dismissed by the High Court) - filed by the present appellant against the orders passed by the District
Judge, in these cases, deciding the only point raised in these cases against the appellant. The appellant is not entitled to again raise the question of
limitation at this stage of the proceedings. C.M.As. Nos. 62 and 67 of 1928 are accordingly dismissed with costs.
As regards C.M. As. Nos. 63 and 64, the question of limitation, though not raised in the first counter-petition filed by the appellant before the
Lower Court, was raised by him in a supplemental counter filed by him in the Lower Court. The appellant did not however appear at the hearing
before the District Judge, but it was mentioned that the hearing of the petitions was advanced without notice to the appellant, and that was the
reason why he did not appear on the advanced date of hearing. But no such point was raised in the grounds of appeal to this Court. If the
appellant''s version be true, one should have expected the appellant to make proper representations to the learned District Judge on the date to
which the petitions were originally posted for hearing, and have the mistake, if any, rectified. But on looking into the execution petitions filed by the
decree-holder, we find that the question of limitation arises in these cases, and the decree-holder should - in the circumstances - be given an
opportunity to show that the execution petitions were not barred by limitation. C M. As. Nos. 63 and 64 of 1928 are therefore allowed and the
execution petitions in these two cases are remanded to the Lower Court for fresh disposal, after giving the decree-holder an opportunity of
showing, by reference to prior proceedings, that they were not barred by limitation when they were filed in Court.
In the circumstances, the appellant must pay the costs of the respondent in these appeals. The costs in the Lower Court will be provided for by
the District Judge when fresh orders are passed.