JUDGMENT
P.K. Bahri, J.
(1) Only short point is involved in this appeal. I have heard the arguments and proceed to dispose of this appeal.
(2) This appeal is directed against order dated 4/12/1989, by and Additional District Judge by which he had dismissed the application moved by the appellant under Order Xxii, Rule 4 read with Section 151 of the Code of Civil Procedure turn bringing on record legal representatives of deceased respondent-Kartar Singh. The application was dismissed as being time barred.
(3) A suit was brought by the deceased-respondent for recovering of possession which was decreed vide judgment dated 29/05/1982. The appellant had filed the appeal before the first appellate Court and on 9/08/1988, Counsel for the respondent informed the appellant that respondent had died on 25/02/1988. An application for bringing on record the legal representatives of deceased respondent was moved on 7/12/1988. In the application there were no facts mentioned which could entitle the applicant-appellant to prove that there existed any sufficient cause for setting aside of abatement of the appeal.
(4) Article 120 of the Limitation Act lays down that the application for bringing on record legal representatives of deceased-respondent could be moved within 90 days and the said period of 90 days is to be counted from the date of death of the respondent. Similar provisions existed in the Old Limitation Act, 1908.
(5) A Division Bench of the Lahore High Court in the case of Shah Muhammad & Anr.v. Khan Bahadur Choudhari Karam Ilahi & Ors,, Air 1922 Lahore 131. held that an application for bringing legal representative son record under Order Xxii Rule 4 of the Code of Civil Procedure has to be within the limitation prescribed under the Limitation Act and provisions of Section 5 of the Limitation Act do not apply to applications to bring on record the legal representatives. In the said case the application having been not moved within the time prescribed, it was held that the suit stood abated.It was. of course, made clear that an application for setting aside of the abatement could be moved but having been not moved the Court held that the matter stood abated.
(6) In Diwan Chand Nirmal Singh & Am. v. Bhagwan Chand & Ors.AIR 1937 Lahore 455. a Division Bench of the said Court held that a particular application by which a prayer was made to bring on record the legal representatives could be treated as an application for setting aside of the abatement if the application discloses sufficient cause for the delay and the plaintiff is not guilty of laches.
(7) In Dasondha Singh Teja Singh & Ors. v. Shadi Ram Sardha Ram &Ors.. Air 1964 Punjab 336. there were cross appeals pending. The plaintiff-appellant in the appeal had died. The legal representatives of the said plaintiff-appellant were imp leaded within limitation but in the cross-appeal filed by the defendant, no application was moved for bringing on record the legal representatives of the deceased plaintiff. It was held that benefit of imp leading the legal representatives within time in one appeal cannot betaken by the defendant in his appeal and his appeal stood abated for failure to implead the legal representatives within time. In the said case the application was filed for bringing legal representatives after lapse of about a year from the date of death although the Counsel had come to know about the death of the plaintiff atleast one month prior to the filing of the application but no satisfactory explanation for each day’s delay from the date of the knowledge of the death till the date of the application had been given. It was held that such delay could not be condoned. Reliance was placed on Supreme Court judgment given in the case of Ram Lal v. Rewa Coalfields Ltd., .
(8) The Supreme Court in the case of Union of India v. Ram Charon (deceased) through his L.Rs., , had categorically laid down that limitation for bringing on record legal representatives commences from the date of the death and not from the date of the knowledge of the death.
(9) Following the above said Supreme Court judgment, this Court in Sardar Begum v. Ajit Kumar (deceased) represented by L.Rs., 1979 (1) Rent Law Reporter 343, also held that limitation commences from the date of the death and not from the date of the knowledge of the death for bringing on record the legal representatives.
(10) In the present case admittedly the respondent had died on 25/02/1988 and thus, the application for bringing on record legal representatives of the deceased respondent could be brought within 90 daysI.e. up to 26/05/1988. But no such application was moved and the appeal stood automatically abated. However, assuming for the sake of arguments that the application which was filed for bringing on record the legal representatives on 7/12/1988, could be deemed to be an application seeking relief of setting aside of the abatement. The short question which arises for decision is whether the said application is within time and whether there has been shown any sufficient cause for setting aside of the abatement. In the application there are no facts given as to why the application for setting aside of the abatement could not be moved soon after the appellant was informed about the date of the death of the respondent on 9/08/1988. the application for setting aside of the abatement could be moved within 60 days from the date of the abatement in accordance with Article 121 of the Limitation Act. The said 60 days also expired on 25/07/1988, while the application was moved only on 7/12/1988. So, the same was also barred by time.
(11) The learned Counsel for the appellant has contended that 90days have to be considered from the date of the knowledge of the death of the respondent and thereafter 60 days have to be counted. The contention of the learned Counsel for the appellant is totally misconceived. The abatement in accordance with law took place when no application was moved for bringing on record legal representatives within 90 days of the date of the death of the respondent. The application for setting aside of the abatement could have been brought within 60 days of the date of the abatement which was not done. The law requires explanation of each day’s delay in seeking the condensation of delay. In the present case, what to talk of giving any reasons for each day’s delay from the date of the knowledge of the appellant regarding the death of the respondent, no facts at all have been mentioned in the application as to why the application could not be moved soon after 9/08/1988 and why it came to be moved on 7/12/1988. So, the first Appellate Court was right in dismissing such a hopelessly misconceived application and dismissing the appeal as abated.
(12) I affirm the impugned order and dismiss this appeal leaving the parties to bear their own costs.