P L D 1963 (W (PLP)

Point No. 3.‑Counsel for the petitioner referred to section 59 ' of Ordinance XLIV of 1962. This section runs as thus :‑ "Section 59.‑Application of this Ordinance to pending proceedings and savings‑ (1) Except as provided in the following subsections, the provisions of the said Code as amended by this Ordinance shall, as far as practicable, apply to all suits, appeals, and other proceedings pending before a Court immediately before the promulgation of this Ordinance. (2) Nothing in this Ordinance shall affect anything already done before the promulgation of this Ordinance or anything which ' is inseparably connected with, dependanton, or con sequential to anything so done. (3) No decision in any suit or proceeding taken before the promulgation of this Ordinance which would not have barred a subsequent suit or proceeding under section 11 of the said Code as it stood before the promulgation of this Ordinance, shall have the effect of barring such suit or proceeding. (4) Every appeal from an appellate decree pending before a Court immediately before the promulgation of this Ordinance shall be deemed to be an application for revision under section 115 of the said Code as amended by this Ordinance and shall be heard and as far as practicable determined accor dingly. (5) An application for setting aside an ex parte decree made under rule 13 of Order IX of the said Code before the promulgation of this Ordinance shall not have the effect of barring an appeal from the ex parte decree. (6) An appeal from an ex parte decree preferred before the promulgation of this Ordinance shall not have the effect of barring an application for setting aside the ex parte decree under rule 13 of Order IX of the said Code. (7) Rules 58 to 63 (both inclusive) of Order XXI of the said Code as they stood before the promulgation of this Ordinance shall continue to apply to all claims and objections made under the said rule 58 before such promulgation. (8) Rule 103 of Order XXI of the said Code, as it stood before the promulgation of this Ordinance, shall continue to apply to application made under rule 97 or under rule 100 of the said Order before such promulgation. (9) Nothing in this Ordinance shall affect any amendment made in the First Schedule to the said Code, in exercise of the powers conferred by section 122 of the said Code, or otherwise, which is not inconsistent with the provisions of the said Code as amended by this Ordinance, but any amendment incon sistent with such provisions shall be deemed to have been repealed to the extent of such inconsistency." He has also referred to section 43 of the Ordinance, which runs as follows :‑ "

43. Amendment of Order XXII, First Schedule, Act V of 1908." In the First Schedule to the said Code in Order XXII in rule 4, in sub‑rule (3), for the words "the suit shall abate as against the deceased defendant", the following shall be substituted, namely :‑ The Court shall proceed with the suit and may pass a decree against the deceased defendant, and the decree so passed shall be binding only on such of the legal representatives of the deceased defendant as were not minors or persons of unsound mind throughout the aforesaid time: Provided that in the event of a legal representative being a minor or of unsound mind for a part of the aforesaid time the decree passed against the deceased defendant shall be binding on such legal representative but the time limited by law for making an application under the sub‑rule (1) shall be deemed to have been extended by the number of days during which he remained a minor or was of unsound mind within the aforesaid time : Provided further that a legal representative may apply for an order to set aside (a) the decree, if any, passed within the time limited or extended as aforesaid, or (b) the proceedings, or such part thereof as adversely affect his interests and which have been taken after the death of the defendant, and the Court shall, if such application was made within the time limited or extended as aforesaid and may, if it was made thereafter, on being satisfied that the legal representative was prevented by any sufficient cause from making such application within such time, make an order setting aside the decree or proceedings or a part thereof, as the case may be." The amendment affected by this section of the Ordinance to Order XXII, rule 4, sub‑rule (3) of the Civil Procedure Code was that for the words "the suit shall abate as against the deceased‑defendant", the latter part of the section has been substituted as sub‑rule (3). Counsel for the petitioner, by referring to the amendment to Order XXII rule 4, sub‑rule (3), read with section 59 C. P. Code, had urged that the penalty of abatement for not bringing the legal representatives of the deceased‑defendant on the record, provided in sub‑rule (3) of rule 4 of Order XXII of the old Civil Procedure Code would not apply to the present case.

7. In my view, subsection (2) of section 59 of the Ordinance is applicable in this case, and this subsection had saved the retrospective application of the Ordinance to the case in hand, c and therefore the suit and the appeal had abated under Order XXII rule 4 (3) of the Civil Procedure Code. Yakub Shah (defendant 7) was held to have died on the 17th of August 1954. The suit, as well as the appeal, had abated after the expiry of ninety days of his death, when no application was made within the statutory period of ninety days to bring his legal representatives on the file. The suit and the appeal had, therefore, abated in the month of November 1954. It is not necessary that there should have been an order of the Court that the appeal or the suit had abated. After the expiration of the period prescribed by law for bringing the legal representatives of the deceased‑defendant on the record, the suit and the appeal had automatically abated. In subsection (2) of section 59 of the Ordinance it has been expressly provided that "nothing in this Ordinance shall affect anything already done before the pro mulgation of this Ordinance, or anything which is inseparably connected with, dependant on, or consequential to anything so done." The appeal was dismissed by the learned District Judge on the 28th of April 1958, on the ground that it had abated, and this revision petition is inseparably connected with, dependant on, or consequential to the decision in the appeal. The amend ment, therefore, to Order XXII, rule 4, C. P. C. as made by section 43 of the Ordinance, would not apply to this case.

8. Counsel further urged that subsection (3) of section 59 would apply, and the question, whether the suit or appeal had abated in toto, or partially, would become final after the decision of these points had been given by this Court, and until the decision of the revision petition, this point cannot operate as res judicata, and therefore, the amendment to Order XXII, rule 4, sub‑rule (3) is applicable retrospectively. The interpretation by the learned counsel of subsection (3) of section 59 of the Ordinance does not appear to be correct., Subsection (3) provides that "no decision in any suit or proceeding taken before the promulgation of this Ordinance, which would not have barred a subsequent suit or proceeding under section 11 of the said Code as it stood before the promulgation of this Ordinance shall have the effect of barring such suit or proceeding. "This subsection intended to make applicable the provisions of section 11 of the Civil Procedure Code as stood before the amending Ordinance had been promulgated, and clarifies that the provisions of section 11 C. P. Code would apply in the same manner as had been applied prior to the promulgation of this Ordinance. Sub section (3), therefore, has got no bearing on the question which is under consideration, as till the matter has been decided by the High Court, the adjudication of the District Judge on this point would not be final, but the High Court, while deciding this point, is not competent to ignore subsection (2) of section 59 of the Ordinance. As the District Judge had passed the order in appeal to the effect that the appeal had abated in toto, and this revision petition is inseparably connected with, dependant on, or conse quential to, the order of the District Judge, therefore, the amend ment to Order 22, rule 4, sub‑rule (3) would not be applicable to this case. The order of the learned District Judge had only confirmed what in reality had the automatic effect of the plaintiffs having not applied for bringing the legal representatives of the deceased‑defendant on the record in 1954, when the amending Ordinance was not in existence. The matter would have been different if the said defendant had died after the enforcement of the amending Ordinance. If during the pendency of the present revision petition one of the respondents had died, then the provi sions of Order XXII, rule 4, sub‑rule (3), as amended, would be applicable. The word "done" used in subsection (2) of section 59 F also includes the words "omitted to have done". If the plaintiff had omitted to apply for bringing the legal representatives of defendant No. 7, within time, and the suit and the appeal had abated in 1954, then the amending Ordinance, being law of procedure, would not be retrospectively applicable unless specifi cally provided therein that it would so apply, but subsection (2) of section 59 clearly saves the application of amendment of Order XXII rule 4, rub‑rule (3) referred to above, in the case of the nature, which is in hand. The word "done", occurring in subsection (2) of section 59 of the Ordinance, if it has been used with reference to either the parties or to a Court, even then the District Judge, having passed the order, before the promul gation of the Ordinance, on an application of the plaintiff, not made within ninety days, the exception provided in subsection (2) of section 59 of the Ordinance, would apply with great rigour is this case. Besides subsection (2) of section 59, the words used "as far as practicable" in subsection (1) of section 59 of the Ordinance are also very significant. In the instant case, it is not practicable to apply the amendment to. Order XXII, rule 4, sub rule (3) contained in section 43 of the Ordinance when the abatement in toto of the suit and the appeal had taken place, automatically, before the promulgation of the amending Ordinance.

9. There is also another aspect of this case. The words occurring in section 59 (1) of the Ordinance "as far as practicable apply to all suits, appeals and other proceedings pending before a Court immediately before the promulgation of this Ordinance" are clear enough to show that the general applicability of this section has been limited only to suits, appeals and revisions etc. which were pending immediately before the promulgation of the G Ordinance. It does not, therefore, apply to the suits, appeals and revisions etc. decided before the promulgation of the Ordinance. In the instant case, as already mentioned, the suit and the appeal had already abated. If the legislature had the intention that the question of abatement of a suit or appeal would become final only when it was upheld by the superior Courts, then it should have specifically mentioned it in this Ordinance. On the contrary, its intention in making applicable the provisions of the Ordinance specifically to the pending cases clearly indicates that the amend ment to Order XXII, rule 4 (3) would not apply to cases already decided.

10. It is thus clear that from whatever angle the legal position on the light of Ordinance XLIV of 1962 is considered, there is no escape from the conclusion that the Ordinance is not applicable to this case.

11. The result is that the revision petition fails and is dismissed with costs. R. B. A./A. H. Petition dismissed.