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Miscellaneous Appeal No. 13 of 1953, decided on 14th September 1953,

, O.III, r. 4 (2) and r. 5, O. VII, r. 23 and O. XLI, r. 38 (3)‑Counsel appointed by party to conduct suit‑Power‑of‑attorney not determined by Court at termination of suit‑Appeal filed‑Service of notice of appeal on counsel of respondent is good service on res pondent.

Order XLI r. 38 (3) applies the provisions of O..VII r. 23 to appellate proceedings. Order VII r. 23 refers expressly to O. III r. 5. The combined effect of these three rules is to enable an appellant to serve notice up3n the respondent's pleader appointed in the suit.

The words "pleader in the Appellate Court mean "pleader who represents him in the Appellate Court," and the words convey no indication that the provisions of O. III r. 4 (2) are to be excluded.

Bhai Gopal v. Peramal A I R 1937 Lah. 428, Gottinakhida v. Gottenakhula A I R 1942 Mad. 402 and Rangildas v. Burgorji A I R 1932 Bom. 337 ref.

Parmanand for Appellants.

Wahiduddin as Amicus Curiae.

‑The appellants represented by Mr. Parmanand served notice of this appeal upon Mr. Wahiduddin, who was the advocate of the Respondents in the Trial Court. The Registrar has held that this was good service of notice of the appeal Mr. Wahiduddin has not filed any writing under. O. III r. 4 (2) determining his appointment, but appearing as amicus curiae has contended that, he not having been engaged for the purposes of any appeal, service upon him is not good service.

The relevant provisions of the Code are O. III rr. 4 and 5 ; O. XLI r. 14 ; O. XLI r. 38 and O. VII rr. 19 to 25. Of these O. VII rr. 19 to 25 and O. XLI r. 38 apply to Sind and are not part of the original schedule to the Civil P. C. Order XLI r. 14 states that notice of the day fixed for hearing of appeal shall be served on the respondent or on his pleader in the Appellate Court in the manner provided for the service on a defendant of a summons to appear and answer. Order III r. 5 states that any process served on the pleader of any party shall be presumed to be duly communicated and. made known to the party whom the pleader represents, and, unless the Court otherwise directs, shall be as effectual for all purposes as if the same had been given to or served on the party in person. Similarly O. VII r. 23 states that where a party engages a pleader, notice or process on him shall be served in the manner prescribed by O. III r. 5, unless the Court directs service at the address for service given by the party. Order XLI r. 38 states that rr. 22, 23 and 24 of O. VII shall apply so far as may be to appellate proceedings.

Mr. Wahiduddin contends that he has been appointed for the purposes of the suit only, and that his authority expires with the end of the suit. We think that this con tention is at variance with O. III r. 4, sub‑rules (2) and (3), since it is expressly laid down there that any appeal from any decree or order in the suit shall be deemed to be proceed ings in the suit and that the appointment shall be deemed to be in force until determined or until all proceedings in the suit are ended so far as regards the client. Rangildas v. Burgorji (A I R 1932 Hom. 337), related to attorneys and also to execution. Gottinakkula v. Gottenakkula, (A I R 1942 Mad. 402) proceeded on the ground that O. XLI‑A, a special Order relating to procedure in appeals to the High Court of Madras, superseded the general provision in O, III r. 5 covering all processes. In Bhai Goval v. Peramal (A I R 1937 Lah.428) the learned Single judge, if we may say so with respect, overlooked the words "or his pleader" in sub‑rule (3) of O. XLI r. 22.

Mr. Wahiduddin contends that the words "in the Appellate Court" indicate that the pleaders must have been appointed specially for the Appellate Court, and that O. III r. 4 (2) provid only a facility, and not a duty, for the continuance in the Appellate Court of the pleader appointed for the suit. We think that this one sided view of O. III r. 4 (2) untenable. We also think. that the words "pleader in the Appellate Court" mean "pleader who represents him in the Appellate Court", and that the words convey no indication that the provisions of O. III r. 4 (2) are to be excluded. It seems to us that Mr. Wahiduddin's arguments connote that the words "pleader in the Appellate Court" were used merely to provide for the case where in anticipa tion of notice an expectant respondent appoints an advocate for the Appellate Court ; this is so rare a contingency that we think the argument is unsound on this ground also.

Moreover O. XLI r. 38 (3) applies the provisions of O. VII r. 3 to appellate proceedings. Order VII r. 23 refers expressly to O. III r. 5. The combined effect of these three rules is to enable an appellant to service notice upon the respondent's pleader appointed in the suit.

Mr. Wahiduddin contends that normally a pleader is engaged and paid for the suit only, and that it would place an undue burden on the pleader if he could be served with notices of an appeal for which he had not been paid or promised payment. The answer is that he can, with leave of the Court, determine his appointment at the end of the suit.

We therefore hold, in agreement with the Registrar, that the service upon Mr. Wahiduddin of notice of the appeal was good.

K. M. A.

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