BALRAM & OTHERS versus THE IIIRD ADDITIONAL DISTRICT. JUDGE & ANR.

Citation: [1983] 2 S.C.R. 734 · Decided: 12-04-1983 · Supreme Court of India · Bench: R.S. PATHAK · Disposal: Dismissed

Judgment (excerpt)

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734 
BALRAM & OTHERS 
v. 
THE HIRD ADDITIONAL DISTRICT. JUDGE & ANR. 
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 
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 
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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. 
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1 he High Court dismissed the appellants' Writ Petition holding that 
Article 110 of the First Schedule of the Limitation Act, 1963 was applicable 
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 
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 
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 
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] 
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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 
limited by law in Article 120 of the First Schedule of the Limitation Act which 
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] 
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 
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. 
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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. 
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 
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 
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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 r

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