IN THE ODIN’S COURT OF JUSTICE
Appellate Jurisdiction
CORAM: JUSTICE ODIN
10th of May,
2013
The Appellant
Vs
The Respondent
THE facts of the above second
appeal as set forth before this Court is that the defendants are the appellants
and the plaintiff is the sole respondent. The suit was filed for specific
performance. The suit was decreed and confirmed by the first appellate court. The
above second appeal is filed challenging the concurrent judgments of the courts
below. Pending the suit,[1]
the plaintiff sold away the suit property to a 3rd party. There is a
delay of 151 days in filing the appeal, hence a separate application praying
for the Condonation of the delay also is filed here alongwith. However, the
said application is yet to be numbered and was returned for want of compliance
with certain defects found therein. Consequently the second appeal has not been
numbered till this date.
Be that as if may, while the
said application was not represented, the sole respondent/plaintiff died
necessitating the appellant herein to file a suitable application to bring the
legal heirs of the deceased sole respondent on file. Accordingly there is also
an application filed before this Court to that effect. In the said scenario,
another application was sought to be made by the appellant herein to implead
the 3rd party in the second appeal. After serving of notice upon the
proposed respondent/3rd party in the appeal, the 3rd
party entered appearance and vehemently opposed the application contending that
he is not a necessary and property proper party to be impleaded for the
adjudication of the appeal. On the other hand, the appellant took recourse to order
22 rule 10 in demanding this Court to implead the 3rd parties as the
contesting parties to the appeal.
Further the 3rd
parties seriously objected the very maintainability of the appeal on the ground
that the suit itself got abated on account of the death of the sole
respondent/plaintiff and no steps were taken by the appellant to bring on the
LRs of the deceased plaintiff on record within the time permitted under the
law. The appellant resisted this contention relying upon section 141 read with
order 22 rule 11 of the CPC, the conjoined reading of which restricts the scope
of the section 141 to either a suit or an appeal, both being meant the same
under the latter provision, and not the proceedings which is a larger ambit
than a suit or an appeal.. Therefore an application taken out under Order 22 pending
an appeal alone will have to comply with legal incidents under that order in
view of section 141 and such as the application made to condone the delay in
filing the second appeal or the application to bring on record the legal heirs
of sole respondent in an unnumbered appeal,[2]
all of which forms part of proceedings falling beyond the scope of order 22
rule 11. Heard both the counsels appearing for the appellants and on behalf of
the 3rd parties and the judgment is delivered as follows:
Issues
framed:
- Would
the second appeal abate against the sole respondent when he dies after the
presentation of the second appeal filed with delay but before it is
numbered, especially when the separate miscellaneous application filed
seeking to condone such delay too has not been numbered yet? And would it
make any difference if such application is numbered but not the second
appeal?
- Is
the filing/presentation of the second appeal perse treated as an admission of it?
- Before
it is numbered, can an application to condone the delay in filing the second
appeal be called proceedings as contemplated under section 141 of the CPC?
It is necessary to decide issues
2 and 3 first to decide issue 1
Issue
2.
When an appeal is
filed/presented in a court, at first, it is given a serial number, shortly
called as S.R.Number after the stamp is defaced. subsequently, the appeal
papers are sent to the respective passing officers who would verify if the
appeal is filed in order and if so, they would attest on it to number it, if
not return them for compliance with the defects. Therefore until the appeal is
numbered, the appeal do not come into existence and will not form part of the
record of this court. Assuming the appeal is numbered, then it shall be posted
for hearing upon which the Court which hears it may admit or dismiss it at the
stage of admission itself. so it is clear the stage of admitting an appeal
comes much later to the stage of presentation/filing of an appeal and hence
mere presentation/filing of an appeal shall not be treated as an admission of
an appeal. Accordingly issue 2 is answered.
Issue
3
Section 141 of the CPC
states the procedure provided under CPC
that apply to a suit would muta mundais
apply to all proceedings in any court of jurisdiction excepting proceedings
under Article 226 of the Constitution. The learned counsel for appellant
contended that this section should be read along with order 22 rule 11 as per
which the word ‘suit’ mentioned in an application of this order would include
an ‘appeal’ but not proceedings. Therefore as per the arguments advanced by the
counsel for appellant, the question of abatement would not arise in the application
made before the second appeal came into existence. This court while may not
agree with the interpretation given by the counsel for appellant on order 22
rule 11 read with section 141 of the cpc, this Court would still agree with the
view of the appellant that abatement would not arise in the unnumbered application
made filed to condone the delay caused in filing the main second appeal itself
for the simple reason that when the appeal itself is not numbered and
consequently have not come into existence, it shall not be logical to hold that
the appeal will abate upon the death of
the sole respondent. further an application to condone the delay in filing the
appeal is a counterpart of an application to condone the delay in filing a suit
since both are filed to initiate a proceeding itself. however the latter is not
contemplated under law and once the suit is barred by limitation, it can never
be instituted, consequently, under section 141, the application to condone to
delay in filing the appeal will not attract non-existing law applicable to such
application and consequently no abatement would arise in such application. This
is different from a situation where the appeal is numbered and subsequently any
of the parties die in which case the appeal may abate and there will be a
necessity to file an application to condone such abatement in the manner
prescribed under order 22 of the CPC. Therefore this Court holds an application
filed seeking to condone the dealy caused in filing the second appeal is not a
proceedings as contemplated under section 141 of the CPC
Issue
1
As it is elaborately discussed above, a second
appeal unless it is numbered it can never be construed to have come into existence
in the eye of law and therefore cannot become part of the record and
consequently if either of the parties die pending the applications in the unnumbered
second appeal, no such abatement would arise.
In the end, the matter is
disposed of with the direction to the appellant to seek leave as contemplated
under order 22 rule 10 before an application to implead the 3rd
party pendent lite is filed. Further the application filed by the appellant to
bring the legal heirs of the sole respondent is allowed and the registry is
directed hereby make the suitable amendments in the both the cause titles of
the application and the main second appeal and number the second appeal if all
other requirements are complied with. Accordingly this matter is disposed of
with the above directions.
Sd/-
Odin.J
[1] if it was pending an unnumbered second appeal
, then in such case the 3rd parties may not be allowed to be
impleaded under order 22 rule 10 in view of order 22 rule 11 which treats suit
and appeal the same which only mean a party who bought the property not pending
the appeal shall be construed to have bought not pending the suit and therefore
can’t have the right nor be forced to be impleaded under order 22 rule 10.
[2] Such an
appeal had not yet become an appeal on record.
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