Arayil Kali Amma and Others vs Palappakkara Manakal and Others

In this case the 4th 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 u/s 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 3 years under Article 178 according to the ruling of

the Full Bench of this Court in Susya Pillai v. Aiyakannu Pillai ILR (1906) M. 529. 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 4th respondent.

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 were 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 sub-sanative law. The decision in Chajmal Das v. Jagdamba Prasad ILR (1889) A. 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 ILR (1881) B. 26.

There is no objection to the application of the new rule on the ground of hardship 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 Kusalhai v. Kabhai ILR (1881) B 26

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 Reg. v. Sorabji Balabhai ILR (1889) B.H.C. 117.

We must hold that the second appeal abates as against the 4th respondent.

It is objected by the respondents that the appeal cannot proceed as against the other respondents as well. The respondents were Co-Uralans of

a Devasom and have obtained a decree for an injunction and damages against the appellants. Co-Uralans 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.

We must dismiss the second appeal with costs.