Kerala High Court
Angadi Veettil Sreedharan vs Cheruvalli Illath Sreedharan ... on 6 June, 1967
Equivalent citations: AIR1968KER195, AIR 1968 KERALA 196, 1967 KER LT 1016 1967 KER LJ 833, 1967 KER LJ 833
JUDGMENT P.T. Raman Nayar, J.
1. I think the true rule in the case of an appeal brought against a person who is dead is that, if an application for amending the memorandum of appeal by substituting his legal representatives in is place is brought within the time prescribed for instituting the appeal or within the time as extended under Section 5 of the Limitation Act, the application should be allowed and the appeal entertained. Else the application should be dismissed, and, consequently, the appeal as a proceeding against a dead person -- See Bank of Commerce, Khulna v. Protap Chandra, 1946 FCR 32: (AIR 194R FC 13) and Santi Prasanna Mukherji v. Harendranath Ballabh, ILR (1948) 1 Cal 25.
2. In these cases the respondent named in the memoranda of appeal admittedly died on 9-9-1966, but the appeals with the dead person alone shown as the respondent were instituted only on 24-10-1966. The last day for filing the appeals was 31-12-1966 but the applications for substituting the legal representatives of the dead person as respondent, were brought only on 31-5-1967. There is no application made under Section 5 of the Limitation Act; nor, if one wore made is there sufficient cause to excuse the delay. True, the appellant disclaims knowledge of file death of the respondent named until his legal representative brought it to the notice of this court on 24-5 1967 by means of applications to dismiss the appeals as incompetent. But then it would appear that the legal representative had come on record on his own application in the proceedings in the first court (these appeals are from orders made in proceedings in execution) on 20-10-1966. This was after notice to the appellant by his counsel and though the appellant would have if that his counsel refused the notices, I think knowledge of the death of the respondent named in the appeals must be imputed to the appellant at least on the date on which notice was given to him on the application by the legal representative to come on record, in other words, on some date before 20-10-1966. It is his own fault or that of his counsel if, by his own act, he denied himself this knowledge. There arc therefore no grounds whatsoever for excusing the delay up to 31-5-1967 for bringing the appeals against the legal representative by seeking to substitute him for the dead person named as the respondent.
3. I dismiss these appeals as incompetent.