Narasimham vs Mohamud Valizulla and Others

It is objected that this appeal has abated because the 1st respondent (plaintiff) died in June 1903 and his legal representatives were not brought

on to the record until August 1904, the time limited by the Limitation Act for bringing on a respondent, being 6 months under Articles 175 C. On

the part of the appellant it is contended that this article does not apply to the case of a respondent in second appeal but only to a respondent in first

appeal and that the article applicable to second appeals is Article 178 of the Limitation Act. He contends that Article 175 C. confines the limitation

to cases coming within Section 368 or Sections 368 and 582, and does not apply to cases coming within Section 587, Civil Procedure Code,

which section alone applies to second appeals. The other side contends that as this application is in fact made under Sections 368 and 582 of the

CPC he is bound by the limitation contained in Article 175 C. of the Limitation Act.

Section 587 of the CPC merely makes the provision contained in Chapter XLI of the CPC (of which Section 582 is a part) applicable to

second appeals. It lays down no period of limitation as applicable to second appeals, but merely directs that the procedure applicable to first

appeals (Chapter XLI) shall, as far as may be, be applied in the case of second appeals.

Section 582 makes the word ""defendants"" in Section 368 include a ""plaintiff respondent"" and therefore makes the procedure to be adopted for

bringing in a plaintiff respondent in a first appeal also applicable in a second appeal. It was, therefore, necessary that the application to bring in the

plaintiff-respondent should be made under Sections 368 and 582 of the Code of Civil Procedure. It does not cease to be an application under

those sections because it is an application that is authorized to be made under them by Section 587.

As to the cases cited they do not apply because they do not refer to the section as now amended.

We, therefore, allow the objections and hold this application C.M.P. No. 987 of 1904 to bring in the legal representative of the 1st respondent

is barred under Article 175 C of the Limitation Act and the appeal abates.

No sufficient reasons are, in our opinion, shown to excuse the delay. No costs are allowed.