Rajendra Babu, J.
1. A Suit C.S. No. 1 of 1960 was filed under Order 1 of Rule 8 of the Codeof Civil Procedure for a declaration in respect of 456 London Mission Churchesand its properties as belonging to London Mission Christians and for injunctionand in respect of certain other properties for recovery of possession. During thependency of the suit. Plaintiff No. 2 died. The suit was dismissed on 1.4.1967 onthe ground that it was not maintainable as plaintiffs had not obtained the consentof the Advocate General under Section 92 of the Code of Civil Procedure toprosecute the suit. However, on merits, it was held that there was a valid mergerof London Mission Society Churches with the SIUC and thereafter SIUCChurches with CSI.
2. Against the said decision in the said suit, an appeal was preferred byplaintiffs Nos. 1, 3 and 5. Plaintiff No. 4 did not join as an appellant. He wasimpleaded as one of the respondents. During pendency of the appeal, all theappellants died. Two persons, Anbiah & Dharmakhan, filed an application forbringing them as LRs of appellant No. 4 in CMP No. 13928 to 13931/1974 on13.3.1974. They also filed another application to set aside the abatement and tocondone the delay in seeking to set aside the abatement. These applicationswere dismissed on the ground that the applicants did not deliberately take stepsto continue the appeal; that no sufficient reasons have been shown for condoningthe delay and that the only reason given appeared to be incorrect and, thus, theappeal was dismissed for non-prosecution by an order made on 10.12.1975. Atthat stage CMP No. 3180/84 was filed under Order 1 Rule 8 CPC by the presentappellants to set aside the order dated 10.12.1975 for restoration of the appealand to implead them as representing the members of the LMS Churches and LMChristians on 12.12.1978. It was accompanied by an application CMP No. 10931of 1979 filed on 9.10.1979 under Section 5 of the Limitation Act to condone thedelay in filing the CMP No. 13928 to 13931 of 1974. the Division Bench of theHigh Court by an order made on 30.4.1991 dismissed the said application. itwas noticed in the course of the order (1) that there are no bona fides in theapplication as the applicants were aware of the dismissal of the appeal longbefore making the application; (ii) that the appeal having been dismissed on theground of non-prosecution and no steps having been taken to set aside the orderwithin time, the application is barred by limitation (iii) that the application to bringon record as LRs also stood barred by limitation (iv) that the Petitioners wereaware of the dismissal of the appeal in view of the proceedings pending in othercourts but have come to the Court with incorrect statement of fact and,therefore, no reason for any relief to be given to them. These appeals are filedagainst the aforesaid order.
3. Fact remains that an application had been filed before the Court on13.3.1974 by Anbiah & Dharmakhan in the said appeal. The High Court afteradverting to the decision of this Court in Charan Singh v. Darshan Singh, : [1975]3SCR48 , and Ramaswamy v. Collector of Dindigul , setout the law correctly to the effect that if a suit had been filed in a representativecapacity, there can be no abatement on the death of any one of the plaintiffs orthe appellants; that only Article 137 of the Limitation Act is applicable and withinthe period set out therein an application for impleadment could be madeinasmuch as no particular provision is made therein as to the period within whichsuch application can be filed. If we reckon the time from the time the lastsurviving appellant died that is from 7.10.1973, the application filed by Anbiah &Dharmakhan; was within time and, therefore, the Division Bench could not havepassed the order made on 10.12.1975 that the party concerned is not diligent inprosecuting the appeal even on the statement of law made by the High Court.
4. We may notice that appellant No. 4 died on 25.10.1970, appellant No. 3died on 1.12.1971 and appellant No. 1 died on 7.10.1973. The appeal wasordered to be dismissed on the ground that the persons interested to prosecutethe appeal had not moved within time. The dismissal for non-prosecution of theappeal by persons interested in the matter could only be under Section 151 CPCand not under any other provision of Order XLI of CPC. If an appeal is dismissedunder Section 151 CPC, Article 122 of the Limitation Act would have noapplication because when a court makes an order under Section 151 CPC it isimplicit that such a court has the power to entertain an application to set aside itsorder made under Section 151 CPC. The power exercised under Section 151CPC is ex debito justitiae. An application invoking the inherent power of thecourt under Section 151 CPC is not one which a party is required to make underany provisions of the CPC for setting in motion the machinery of the court. ThusArticle 122 of the Limitation Act has no application to such an application.
5. If that be the correct position, an application for restoration of the appealwould be not by a party to the proceedings and will not fall within the scope ofArticle 122 but under Article 137 of the Limitation Act. CMP No. 3180/84 wasfiled on 12.12.1978. Therefore, the application for setting aside the order ofdismissal of appeal and for impleadment is filed within three years from the dateof order of dismissal for non-prosecution and is thus within time.
6. In that view of the matter, the observation of the High Court in the courseof its order under appeal that the application to come on record is hopelesslybarred by time and there was no scope to review the order made earlier in theappeal will not be correct. We set aside the order made by the High Courton10.12.1975 and the order dated 13.4.1991 and allow the said CMPs referred toabove with a direction for the applicants therein to be impleaded as parties in theappeal. Thus, the appeal in A.S. No. 23/1968 stands restored and remitted tothe High Court for disposal in accordance with law.
7. The Learned Counsel on both sides are agreed that the orders of the HighCourt under challenge in Civil Appeal No. 3292 of 1993, Civil Appeals (arising outof SLP(C) No. 3586-3598/1998) and Civil Appeals (arising out of SLP(C)3258-3260CC 2523-2525/1998), need to be set aside and the matters beremitted to the High Court for fresh consideration in accordance with law. In theSpecial Leave Petitions leave is granted.
8. These appeals stand allowed accordingly.