TaxTMI 
TaxTMI 
2014 (12) TMI 1448
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....No. 1559/2009 and for condoning the delay in filing the two interlocutory applications. The case has a chequered history as the Letters Patent Appeal itself had earlier stood dismissed on account of non-compliance of the peremptory order dated 15.7.2011 for bringing the heirs of respondent no. 1 on the record within three weeks but was subsequently restored by order dated 23.9.2014 passed in MJC No. 5319/2013 with the observation that the Court was satisfied with the reason assigned for non-compliance of the order dated 5.8.2011. Learned counsel for the respondents opposes the prayer for substitution on the ground that the substitution had been filed on 8.10.2013 after more than three years from the death in March, 2008 of respondent no. 1. In support of the same learned counsel relies upon a decision of a learned single Judge of this Court in the case of Sukh Bilas Roy & Ors. Vs. The State of Bihar & Ors.: 2013(3) PLJR 857, in paras 14 and 15 of which it has been held as follows:- "14. Coming once again to the provisions of the Limitation Act, this Court finds that under Article 137 a period of three years has been prescribed for filing any application for which no ....
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.... it has to be held that the provisions of the Order 22 of the Code of Civil Procedure do not apply to a substitution application in Civil Revision application filed under Section 115 of the Code. An order of substitution can be passed by the Court either under Section 146 or under its inherent powers and in both these cases the period of limitation would be three years under Article 137 of the Limitation Act. Since the present application was filed within six months of the death of the opposite party, and on the very next day of the admission of the case, it is difficult to hold that the petitioners were guilty of such delay which should not be ignored in the Courts discretion." As against the same, learned counsel for the appellant relies upon a decision of the Supreme Court in the case of Puran Singh & Ors. Vs. State of Punjab & Ors.: (1996) 2 SCC 205, para-12 of which is quoted below:- "12. As such even if it is held that Order XXII of the Code is not applicable to writ proceedings or writ appeals, it does not mean that the petitioner or the appellant in such writ petition or writ appeal can ignore the death of the respondent if the right to pursue remedy even after ....
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....ly to writ proceedings although certain principles enunciated therein have been applied in writ proceedings from time to time. Thus, there cannot be any automatic application of the provisions of the Code of Civil Procedure in the matter of writ petitions or writ appeals and for the said reason the period of three years prescribed in the residuary Article 137 of the Limitation Act would not also be attracted in proceedings arising out of Article 226 of the Constitution of India including writ appeals. Thus, there cannot be any fixed period so far as substitution of the heirs and legal representatives in a writ petition or writ appeal is concerned. That has also been clearly held by the Supreme Court in Puran Singh's case (supra) holding that there is no question of abatement and it is for the Court to take into consideration the facts and circumstances of a particular case for the purpose of condoning or not the delay in filing the application for substitution of the legal representatives. That being the legal position, we do not think that it is open to the Courts to prescribe any fixed period for the purpose of filing a substitution petition and for abatement of the writ petition....
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....awfully or unlawfully in possession of the whole of the estate at the moment of the demise of the minor and thereafter, would not be even intermeddling with the same? As has been highlighted earlier, the concept that the intermeddling with the estate is wide one and even a trifling intrusion therein may bring one within the concept of an intermeddler or an executor de son tort. To say that the person, who, the day before was lawfully in possession of the estate and who continues to be so in a different capacity, would not at least be an intermeddler therewith, appears to me as wholly untenable. It must, therefore, be held that the legal guardian in such a situation is undoubtedly within the sweep of the phrase "any person who intermeddles with the estate of the deceased", and, is, therefore, a legal representative, within the inclusive definition of Section 2(11) of the Code of Civil Procedure. Once that is so, it is plain that if he is already on the record of the case, the mere absence of one or the other heirs would not result in the abatement, in view of the long line of authority noticed earlier. Indeed this position is too axiomatic to deserve further elaboration. 17....