If an appeal is presented against a person who is dead at the date of presentation, the Court may under Sect. 153 Civil Procedure Code, permit the cause title to be amended or may return the appeal memorandum for amendment and representation. We think that the Bench who decided Govinda Kaviraj Purohita v. Gauranga Saw (18 L.W. 54) went too far in dismissing the Second Appeal as incompetent and in declining to exercise its power of correcting errors under Sect. 153 Civil Procedure Code. If the appeal memorandum is not allowed to be amended the party may apply for a refund of the spoilt stamp and may present a fresh appeal. In any case, the Court will, if the appeal is out of time, against the legal representative have to excuse the delay in presentation before it can proceed to hear the appeal.
Although the appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it is acting in a proceeding in a suit and as such has full power under Sect. 163 to direct an amendment of the appeal memorandum.
As observed by Ramesam and Wallace JJ. in C. M. P. No. 2807 of 1923 the question resolves itself into one of Court fees only and if the party has only made an unintentional error in inserting the name of the wrong respondent in his appeal memorandum, there is no reason to make him pay Court-fees twice over, and it is simpler for the Court to direct an amendment of the cause title.
The case will go back to the Admission Court with an expression of our opinion that the Court has power to amend the cause title but it is a matter for its discretion whether it should excuse the delay in presentation.
Cost of this reference will be costs in the Second Appeal.
Adusumilli Gopalakrishnayya And Another v. Adivi Lakshmana Rao
Adusumilli Gopalakrishnayya And Another v. Adivi Lakshmana Rao
(High Court Of Judicature At Madras)
Civil Miscellaneous Petiion No. 2880 Of 1923 | 13-10-1924
Advocate List
Bench
- HON'BLE OFFICIATING CHIEF JUSTICE MR. CHARLES GORDON SPENCER
- HON'BLE MR. JUSTICE KUMARASWAMI SASTRI
- HON'BLE MR. JUSTICE KRISHNAN
Eq Citations
- (1925) 49 MLJ 590
- (1926) ILR 49 MAD 18
- AIR 1925 MAD 1210
- LQ/MadHC/1924/535
Head Note
Civil Procedure Code, 1908 — Ss. 153 and 163 — Appeal against a person who is dead at the date of presentation — Amendment of cause title — Dismissal of appeal as incompetent — Discretion of Court to excuse delay in presentation of appeal against legal representative of deceased respondent — Held, if an appeal is presented against a person who is dead at the date of presentation, the Court may under S. 153, CPC, permit the cause title to be amended or may return the appeal memorandum for amendment and representation — If the appeal memorandum is not allowed to be amended the party may apply for a refund of the spoilt stamp and may present a fresh appeal — In any case, the Court will, if the appeal is out of time, against the legal representative have to excuse the delay in presentation before it can proceed to hear the appeal — Although the appeal may be incompetent owing to the wrong person being named as respondent, the Court which deals with it is acting in a proceeding in a suit and as such has full power under S. 163 to direct an amendment of the appeal memorandum — The case will go back to the Admission Court with an expression of our opinion that the Court has power to amend the cause title but it is a matter for its discretion whether it should excuse the delay in presentation — Cost of this reference will be costs in the Second Appeal
