S.K. Katriar, J.
1. Heard Mr. Mangal Prasad Mishra for the appellants, and Mr. Vijay Shankar Srivastava for respondent No. 1. The defendants are the appellants. This appeal is directed against the order dated 25-5-1999, passed by the learned 6th Additional District Judge, Motihari, in Title Appeal No. 99 of 1993 (Ramashray Mahato and Ors. v. Amiri Mahto and Ors., whereby he has held that the appeal at the instance of the present appellants has abated on account of non-substitution of heirs of a co-appellant.
2. The plaintiff (respondent No. 1 herein) had instituted the suit for declaration of title and consequential reliefs which was decreed by judgment dated 18-10-1993. The defendants preferred Title Appeal No. 99 of 1993 before the learned District Judge, Motihari. Appellant No. 2 (Jiya Lal Mahto) died on 25-8-1998, and steps for substitution were not taken. Therefore, the plaintiff (respondent No, 1 herein) filed an application on 15-2-1999, praying therein that the appeal had abated in view of non-substitution of deceased appellant No. 2. Thereafter, on 17-3-1999, an application under Order XXII, Rules 4 of the Code of Civil Procedure (hereinafter referred to as the 'Code') was filed on behalf of the surviving appellants praying therein to set aside the abatement and substitute the heirs of late Jiya Lal Mahto. Before this application could be taken up, the heirs of deceased appellant on 22-3-1999 filed an application under Order I, Rule 10 to implead them as appellants. Both these applications have been rejected by the impugned order and it has been held that the appeal as a whole has abated.
3. While assailing the validity of the impugned order, learned Counsel for the defendants (appellants) submits that the impugned order is bad in law. It is submitted that law is well settled that in case heirs of the deceased are already represented, then substitution must be allowed irrespective of the delay. He next submits that the learned Additional District Judge should have condoned the delay in the facts and circumstances of the case. He lastly submits that the application under Order I, Rule 10 should have been allowed. He relies on the following reported judgments :
(i) AIR 1982 SC page 948 (Mohammad Arif v. Allah Rabbul Alamin and Ors.);
(ii) AIR 1983 SC page 355 (Bhagwan Swaroop and Ors. v. Mool Chand and Ors.);
(iii) AIR 1979 SC page 1393(N. JayaramReddi and Anr. v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool.
4. Learned Counsel for the plaintiff (respondent No. 1 herein) has supported the impugned order. He, inter alia, submits that it is manifest from a plain reading of the impugned order that the defendants had not filed condonation application before the learned Court of appeal below. Therefore, the abatement had set in by automatic operation of law. He relies on the following reported judgments:
(i) AIR 1963 SC page 553 (Ram Samp and Ors. v. Munshi and Ors.);
(ii) AIR 1964 SC page 215 (Union of India v. Ram Charan);
(iii) AIR 1973 SC page 204 (Babu Sukhram Singh v. Ram Dular Singh and Ors.).
5. I have perused the impugned order and considered the submissions of learned Counsel for the parties. Learned Counsel for the plaintiffs (respondent No. 1 herein) is right in his submission that the application for substitution, or that of setting aside the abatement, has to be filed within the time prescribed by the Limitation Act, failing which abatement sets in by automatic operation of law. In order to seek condonation of the delay in filing such application, it is open to the appellants to file a condonation application in terms of Section 5 of the Limitation Act making out a case of 'sufficient cause' explaining the delay in filing the application. It appears from paragraph 6 of the impugned order that the defendants (appellants herein) did not file any condonation application, or position not disputed by the learned Counsel for the defendant (appellants) before me. Therefore, neither the defendants (appellants herein) were in a position to press their case for condonation of delay nor was there an application of the mind on the part of the Court whether or not a case for condonation of delay was made out. In other words, the abatement of the appeal in so far as it related to Jiya Lal Mahto, a co-appellant, had become final.
6. Learned Counsel for the defendants (appellants) has strongly relied on the judgment of the Supreme Court in Bhagwan Swaroop and Ors. v. Mool Chand and Ors. (supra). In paragraph 14 of the judgment, it has been held that '... if the legal representatives are not brought on record within the stipulated period, certain consequences follow and the action abates either wholly or partially depending on the facts and circumstances of a particular case. The Code further provides that an application may be made for setting aside the abatement within a stipulated period, it is now well settled that an abatement can be set aside at any time even beyond the period prescribed for making an application for setting aside the abatement if sufficient cause is shown explaining the delay in the making of application...'. Paragraph 15 is also illuminating and is set out hereinbelow for the facility of quick reference:
'The provision fixing a particular time for making an application for bringing legal representatives on record with the consequence of the suit or appeal abating if no application is made within time, have been enacted for expeditious disposal of cases in the interest of proper administration of justice. It is further to be borne in mind that when a suit or an appeal abates, a very valuable right accrues to the other party and such a right is not to be ignored or interfered with lightly in the name of doing substantial justice to the party, as depriving a party of a lawful right created in the interest of administration of justice in the a sence of good grounds results in injustice to the party concerned. For doing justice to the parties, the Courts have consistently held that whenever sufficient cause is shown by a party at default in making an application for substitution, abatement will have to be set aside as the good cause shown for explaining the delay in making the application is sufficient justification to deprive the other party of the right that may accrue to the other party as a result of the abatement of the suit or appeal. The Courts have also consistently ruled that latches or negligence furnish no proper grounds for setting side the abatement. In such cases, a party guilty of negligence or laches must bear the consequences of his laches and negligence and must suffer. In appropriate cases, taking into consideration all the facts and circumstances of a case, the Court may set aside the abatement, even if there be slight negligence or minor laches in not making an application within the time provided an overall picture of the entire case, requires such course for furthering the cause of justice. When negligence and laches are established on the part of the party who seeks to set aside the abatement, the application of such a party should be entertained only in the rarest of cases for furthering the ends of justice only and on proper terms.'
7. As stated hereinabove the defendants (appellants herein), had not filed any application seeking condonation of delay in filing the requisite application. Therefore, the legal consequences automatically followed whereby the appeal abated in so far as Jiya Lal Mahto, a co-appellant is concerned. Allowing the appeal to continue with respect to the remaining appellants may have resulted in inconsistent judgment and decree.
8. Relying on the judgment of the Supreme Court in Mohammad Arif v. Allah Rabbul Alamin and Ors. (supra), learned Counsel for the defendants (appellants) submits that if the interest of the deceased is already adqueately represented in the lis then the same does not abate. The contention is based on a misreading of the judgment. It appears to me from the same that the concerned party, being the heir of the deceased, was already on record, and the only deficiency was that he had not been formally noted as a legal heir of the deceased. The position in the present case is quite different. The heirs of Jiya Lal Mahto deceased are not represented and, therefore, the appeal has rightly been held to have abated.
9. Learned Counsel for the plaintiff (respondent No. 1 herein) rightly submits that the scope of Order XXII, Rule 4, CPC on the one hand, and that of Order I, Rule 10 CPC on the other, are quite different. In the case of the former, the heirs enter into the shoes of the deceased with all rights and liabilities and are precluded from presenting a case inconsistent with the one set up by the deceased. On the other hand, Order I, Rule 10, CPC is available to a party in a situation where the party or parties are trying to enter appearance for the first time and entirely on their own, and is free to take any stand he wishes. The provisions of Order XXII, CPC apply in a situation caused by the death of a party already on record and is bound by the laws of limitation, whereas in the case of the latter, the applicant may not be bound by any such restriction. Lastly, law is well settled that applicability of general provisions are excluded in situations where specific provisions are in force. In the present case, the provisions of Order XXII are applicable to the exclusion of Order I, Rule 10 because the situation has arisen on account of the death of a party. A thing which cannot be done directly, cannot be permitted to be done indirectly.
10. In the result, the appeal fails and is accordingly dismissed.