However, even if it is assumed that the present case is governed by Order 22 Rule 10 of the Code, the question still remain, whether the application made by the new trustee would be governed by any period of limitation. Even though, Shri Kherdekar appearing for the respondents before the learned single Judge had submitted that such an application would be governed by Article 181 of the Indian Limitation Act, 1908, he has very fairly conceded before us that such an application would not be governed by any period of limitation, It is not, therefore, necessary to decide this point in this appeal. However, in Baijnath Ram v. Mt. Tunkowati MANU/BH/0076/1962 : AIR1962Pat285 Full Bench of the Patna High Court held that unlike Rules 3 and 4, of O.22, no limitation is prescribed for presentation of an application under Order 22 Rule 10, and no penalty is laid down for failure to substitute the person on whom the interest of the deceased plaintiff or defendant has devolved and hence the right to make an application under the latter rule is a right which accrues from day to day and can be made at any time during the pendency of a suit and there is no abatement under that rule. A similar view has been taken by a Single Judge of the erstwhile Nagpur High Court in C. Wright Neville v. E. H. Freser MANU/NA/0101/1943. It would, therefore, appear that once It is held that the application is governed by O. 22 Rule 10 of the Code, then such an application could be made at any time during the pendency of the suit or appeal, but while granting leave to the applicant to proceed with the suit or appeal, the Court would consider the question on merits. However, the application cannot be thrown out simply because it is not made within a particular period,
IN THE HIGH COURT OF BOMBAY AT NAGPUR
Letters Patent Appeal No. 7 of 1971
Decided On: 24.04.1978
Sitabai Ramchandra Jaltare Vs. Masjid Nurun Mohalla Jingerwadi
Hon'ble Judges/Coram:
M.D. Kambli and A.A. Ginwala, JJ.
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