Madras High Court
Arayil Kali Amma And Ors. vs Pelappakkara Man Aral Sankaran ... on 7 January, 1910
Equivalent citations: (1911)ILR 34MAD292
JUDGMENT
1. In this case the fourth respondent died on the 9th December 1907. No application has been made till now to bring his legal representative on the record. The question is whether the second appeal abates under Section 108 read with Order XXII, Rule 11 and Rule 4 of the Code of Civil Procedure. The time provided by the Limitation Act of 1877 was not six months under Article 175 (c) but three years under Article 178 according to the ruling of the Pull Bench of this Court in Susya Pillai v. Aiyakannu Pillai (1906) I.L.R. 29 Mad. 529.
2. But this period has been cut down to six months under Article 177 of the Limitation Act of 1908. If this article applies the second appeal must abate as regards the fourth respondent.
3. According to Section 3 of Act IX of 1908, an application to bring in the legal representative now made must be dealt with under this Act. Section 30 of the Act makes a special provision in respect of suits for which a shorter period is provided by the new Act than by the old, giving a further period of two years after the Act when the plaintiff would be barred if the new period wore applied. But there is no similar provision in the case of an application. Section 6 of the General Clauses Act X of 1897 has no application so as to preserve the older period of limitation which is not a rule of substantive law. The decision in Chajmal Das v. Jagdxmba Prasad (1889) I.L.R. 11 All. 408 seems to be exactly in point. The fact that in this case an application to bring in the representative would be barred on the very date of the coming into force of the new law fixing the shorter period cannot affect the principle applicable as has been pointed out in the English cases referred to in Khusal Bhai v. Kabhai (1882) I.L.R. 6 Bom. 26 p. 30. There is no objection to the application of the new rule on the ground of hard ship when the legislature has postponed the coming into operation of the new Act to the 1st January 1909 though it was passed on the 7th August 1908. The facts of the case in Khusal Bhai v. Kabhai (1882)I.L.R. 6 Bom. 26 at p. 30 are not clear and the principle of that case is distinguishable having regard to the interval of time between the passing of the Act and its coming into force. We agree with the decision in Beg v. Dorabji Balabhai (1874) 11 B.H.C.R. 117.
4. We must hold that the second appeal abates as against the fourth respondent.
5. It is objected by the respondents that the appeal cannot proceed as against the other respondents as well. The respondents were co-uralers of a davasom and have obtained a decree for an injunction and damages against the appellants.
6. Co-uralers are joint trustees of the temple and its properties. It is not open to the appellants to prosecute the appeal against some of the trustees leaving the decree of the District Court intact in favour of the others.
7. We must dismiss the second appeal with costs.