G. CHRISTHUDAS AND ANR. versus ANBIAH (DEAD) AND ORS.

Citation: [2003] 2 S.C.R. 247 · Decided: 19-02-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Appeal(s) allowed
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Judgment (excerpt)

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G. CHRISTHUDAS AND ANR. 
A 
v. 
ANBIAH (DEAD) AND ORS. 
FEBRUARY 19, 2003 
[S. RAJENDRA BABU AND ASHOK BHAN, JJ.] 
B 
Code of Civil Procedure, 1908-Section 151, Order XU-Limitation 
Act, lfJ6J~Attlcles 122 and 137-Suit-Dismissal of-Appeal-Death of 
appeliants-Applicatlons for bringing legal representatives on record in respect C 
of appellant who did not join the appeal held barred by /imitation-However 
It was filed within limitation period from the date of death of last surviving 
appellant-Appeal dismissed for non-prosecution holding that party not diligent 
in prosecuting the appeal-On appeal, held-Applications not barred by 
limitation-Dismissal for non-prosecution can be only under Section 151 and 
· not under Order XLI-Jf an appeal is dismissed uls 151 it will not fall within D 
the scope of Article 122 but under Article 13 7 .. 
After dismissal of their suit, plaintiffs 1,3 and 5 preferred appeal; 
plaintiff 4 did not join them. During pendency of the appeal, all the 
appellants died. Legal heirs of appellant 4 filed application for bringing 
them on record, but the same was dismissed as barred by limitation. Their E 
application for condonation of delay in filing the application and 
application for setting aside the abatement were also dismissed on the 
ground that they deliberately did not take steps to continue. the appeal. 
The appeal was dismissed for non-prosecution. Thereafter, application of 
present appellants for restoration of appeal and application to implead F 
them as legal representatives were also dismissed: Hence the present 
appeals. 
Allowing the appeals, the Court 
HELD: 1. The observation of the High Court that the application to G 
• bring the appellants on record was barred by time and there was no scope 
to review the order made earlier in the appeal is not correct. (251-8) 
2. High Court 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 
247 
H 
248 
SUPREME COURT REPORTS 
[2003) 2 S.C.R. 
A 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 impl~adment could be made inasmuch as no particular 
provision is made therein as to the period within which such application 
can be filed. If the time is reckoned from the time the last surviving 
B appellant died, the application filed by legal representatives of appellant 
No.4 was within time and, therefore, the Division Bench could not have 
held that the party concerned is not diligent in prosecuting the appeal even 
on the statement of law made by the High Court. (250-C-E) 
c 
Charan Singh v. Darshan Singh, AIR (1975) SC 371, relied on. 
Ramaswamy v. Collector of Dindigul, (1990) 11 MLJ 562, referred to. 
3. 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 CPC. If an appeal is dismissed 
D 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 e.ntertain 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 
E party is required to make under any provision 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. (250-F-G) 
4. 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 
F Article 137 of the Limitation Act. The application for setting aside the ~rder 
of dismlssnl 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. 
(250-H; 251-A-B) 
G 
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 3292 of 1993. 
From the Judgment and Order dated 3.7.1996 of the Chennai High 
Court in Crl. S.A. Nos. 592 to 594 of 1996. 
WITH 
H 
C.A. No's. 3293-94/1993, 1418-1420/2003 and 1422-1424/2003. 
1 
G. CHRISTHUDAS v. ANBIAH [RAJENDRA BABU, J.] 
249 
K.S. Sukumaran, T.L. Vishwanath Iyer, S. Balakrishnan, Dr. A Fancis A 
Julian, Sumit Kumar, Ms. Kartika Suku
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