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Judgment
13 paragraphs · 264 wordsThe first question for determination is whether the application made on behalf of the appellant on the 28th September 1903 to substitute for the
1st respondent who died on, the 2nd October 1902 the 4th, 5th, and 6th respondents as his representatives is time barred.
It is contended that the application is governed by article 175 c. of Schedule 2 of the Limitation Act and therefore time barred, not having been
made within 6 months of the death of 1st respondent.
Being an application presented in a second appeal, it is not strictly made u/s 582, C.P.C. and, therefore, it is not within the language of Article
175(c). ""The application is one which is made by virtue of Section 587, C.P.C, which renders the chapter in which Section 582 occurs applicable
to second appeals.
It is argued that the reference to Section 582 in Article 175 c. should be held to include by implication second appeals referred to in Section
587, but this contention is opposed to the ratio decidendi of the Full Bench decision in Lakshmi v. Sridevi ILR 22(1885) M. 1, which has been
followed by all the other. High Courts. See Debi Din v. Chunna Lal ILR 22(1888) A. 264, Balkrishna Gopal v. Bal Joshi Sadashiv Joshi ILR
22(1886) B. 663 and Udit Narain Singh v. Harogouri Prasad ILR 22(1886) C. 590. The case of Vakkalagadda Narasimham v. Vahizulla Sahib
ILR 22(1905) M. 498 is in direct conflict with the principle on which the Full Bench proceeded, and which, in our opinion, must be adopted as
correct.