JUDGMENT
Vinod K. Sharma, J.
1. This revision petition has been filed against order dated 19.4.1995 passed by the Additional District Judge, Ludhiana, vide which the application filed by the petitioner for bringing on record the legal heirs of deceased Chand Singh, had been declined and the application filed by Chuhar Singh was allowed and it was ordered that the appeal qua Chand Singh stands abated.
2. Mr. G.S. Punia, learned Counsel, appearing for respondent No. 1 by way of preliminary objection challenged the maintainability of the revision petition on the plea that since the order is appealable, therefore, no civil revision was competent. Faced with this situation, Shri M.L. Saggar, learned Counsel for the petitioner, submitted that the appeal also lies to this Court and, therefore, this civil revision may be treated as an appeal against the impugned order. Office is directed to make necessary correction in this regard and register this civil revision as SAO.
The facts leading to the present appeal are that Chuhar Singh had instituted a suit against Chand Singh and Sat Pal Singh for possession as owner of land measuring 2 Kanals 4 Marlas situated at village Kamalpur by way of specific performance of an agreement dated 22.5.1987 on receipt of balance sale consideration amounting to Rs.3,000/-. The claim was made for setting aside the sale deed dated 23.2.1988 executed by Chand Singh, defendant No. 1 in favour of Sat Pal Singh, defendant No. 2 now appellant herein. In alternative, it was prayed that earnest money paid by the plaintiff be recovered from Chand Singh.
3. The suit was contested and the stand taken by defendant No. 1 was that he had entered into an agreement dated 26.11.1986 with appellant-defendant No. 2 and had executed a sale deed in his favour on 23.2.1988 for sale of land measuring 10 Kanals 4 Marlas including the suit land. He denied the execution of agreement in favour of the plaintiff-respondent and also receipt of earnest money. Thus he disputed his liability to execute the sale deed in favour of the plaintiff.
4. The appellant-defendant No. 2 by way of a separate written statement claimed that defendant No. 1 was not the owner of the suit land as the same had been sold to him. It was also pleaded that he was a bona fide purchaser for consideration and had no knowledge of the agreement in favour of the plaintiff.
5. On appreciation of evidence, the suit filed by the plaintiff-respondent was decreed by way of judgment and decree dated 6.2.1990 passed by Shri Jaspal Singh, Sub Judge, 1st Class, Jagraon, and it was ordered that the plaintiff was entitled to possession by way of specific performance of agreement dated 22.5.1987 on payment of balance consideration of Rs. 3,000/- and sale deed in favour of defendant No. 2 to the extent of 2 kanals 4 marlas was set aside.
6. Aggrieved by the said judgment and decree, Satpal Singh and Chand Singh filed the appeal against plaintiff-respondent No. 1 before the Appellate Court to challenge the aforesaid judgment and decree. During the pendency of the appeal, Chand Singh died on 12.11.1990.
7. Shri Sampuran Singh son of Chand Singh filed an application on 1st of May, 1992 mentioning therein that Chand Singh had left behind 9 legal heirs. However, it was claimed in the said application that Chand Singh had left behind a Will in his favour, therefore, he was to be impleaded as his legal heir.
8. Chuhar Singh moved an application under Order 22 Rules 3 and 11 of the Code of Civil Procedure claiming therein that for want of application to bring on record the legal representatives of Chand Singh, the appeal stood abated and accordingly sought dismissal of the appeal. On 5th of November, 1992 an application was moved by Sampuran Singh for condonation of delay in filing the application for impleading himself as legal representative of Chand Singh on the ground that he was led to believe that the period of limitation for filing of application was 3 years. On 17th of December, 1992, Sampuran Singh made an application for dismissing application moved by him for being brought on record as legal representative of Chand Singh as also the application moved by him for condonation of delay. When the application by Sampuran Singh was made for withdrawal of the application dated 1.5.1992, appellant defendant No. 2 moved an application under Order 2 Rule 9 of the Code of Civil Procedure for setting aside the abatement of the appeal against Chand Singh after condoning the delay in filing the application under Section 5 of the Limitation Act, 1963.
9. The application dated 1st of May, 1992 filed for bringing him on record as legal representative on the basis of Will moved by Sampuran Singh as well as the application dated 17th December, 1992 for withdrawal of his application dated 1.5.1992, were dismissed as having become in fructuous. Similarly, the 3rd application moved by Sampuran Singh for extending the period of limitation was also rejected as being rendered ineffective and it was ordered to be disposed of as withdrawn.
10. The learned lower Appellate Court proceeded to decide the application made by Chuhar Singh praying for dismissal of the appeal having abated and also one moved by Sat Pal Singh on 29.7.1993 for setting abatement of the appeal as well as impleading the legal representatives of late Chand Singh after condonation of delay. The learned lower Appellate Court came to the conclusion that appeal against Chand Singh stood abated alter expiry of three months from the date of his death as no application was moved for bringing on record the legal representatives of the deceased. To arrive at this conclusion, the learned lower Appellate Court relied upon the judgment of the Hon’ble Supreme Court in Mahant Niranjan Dass v. Shiromani Gurdwara Prabhandhak Committee. (1992-2) 102 P.L.R. 497 (S.C.), wherein it was held that the limitation for moving an application for bringing the legal representatives on record is 90 days. Therefore, the application moved by appellant-defendant No. 2 on 29th of July, 1993 was also dismissed being delayed 3 years and 9 months. It was held that the delay was not properly and sufficiently explained and thus application under Section 5 of the Limitation Act was dismissed.
11. Mr. M.L. Saggar, learned Counsel for the appellant, vehemently argued that the order passed by the learned Lower Appellate Court cannot be sustained inasmuch as the appeal could not abate with the death of Chand Singh as he was also an appellant along-with Chand Singh and in fact he had purchased whole of the area including the area in dispute. According to the learned Counsel, appellant being the owner was entitled to amend the appeal which was required to be decided on merit and abatement qua Chand Singh did not in any way affect his right. He also made a reference to the provisions of Order 22 Rule 3 of the Code of Civil Procedure to allege that this Court has been pleased to lay down that where within the time limited by law, no application is made for bringing the legal representatives on record, the suit is not to abate against the deceased plaintiff and the judgment can be pronounced notwithstanding his death which shall have the same effect as if it has been pronounced before the death took place. This Court also by way of amendment of order 22 Rule 3 C.P.C. has been pleased to lay down that the contract between the deceased and the pleader in that event shall continue to subsist. Thus the contention of the learned for the appellant was that the legislative intention has been to decide such cases on merit and negate the law of abatement.
12. I have considered the arguments raised by the learned Counsel for the appellant and do not find any force in the same. The amendment has been made on 21.2.1992 and. therefore, the amended provision of order 22 Rule 3 of the Code of Civil Procedure would not apply to the facts of the present case.
13. Mr. G.S. Punia, learned Counsel appearing for the respondent-plaintiff placed reliance on the judgment of the Hon’ble Supreme Court in the case reported as Rameshwar Prasad and Ors. v. Shambehari Lal Jagannath and Anr. A.I.R. 1973 S.C. 1901, to contend that if one of the appellant died, then the whole appeal is to abate. The contention of the learned Counsel for the appellant that he present appellant-defendant No. 2 was entitled to continue with the appeal was misconceived. Para 14 of this judgment reads as under:
14. Further the principle behind the provisions of Rule 4 seems to be that any one of the plaintiff or defendants, in filing such an appeal, represents all the other non-appearing plaintiffs or defendants as he wants the reversal or modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and ‘was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath.
14. The learned Counsel for the respondent placed reliance on the judgment of the Hon’ble Supreme Court in Dwarka Prasad Singh and Ors. v. Harikant Prasad Singh and Ors. , wherein it has also been held that on account of death of one of the appellants whole of the appeal shall abate. Para 7 of the said judgment reads as under:
7. The second limb of argument of the appellants is based on Order 41 Rule 5(4), Civil Procedure Code. According to that rule, where there are more plaintiff or more defendants than one in a suit and the decree appealed from proceeds on any ground common to all the plaintiffs or all the defendants any one of the plaintiffs or the defendants may appeal from the whole decree and thereupon the appellate Court may reverse or vary the decree in favour of the plaintiffs or defendants as the case may. As the appeal had been filed by defendants second party, it has been contended that it remained complete and competent in spite of the death of Guha defendant first party, for the reason that the decree proceeded on a ground common to all the defendants. It appears that there was conflict of judicial opinion on the question whether the said rule could be involved invoked when one of the several appellants had died and his legal representatives had not been brought on record with the result that the appeal had abated against him. But his matter stood concluded by the decision of this Court in Rameshwar Prasad v. Shyam Beharilal Jagannath . In that case the appeal had been filed in the High Court not by any or some of the plaintiffs against whole decree, but had been filed by all the plaintiffs jointly. One of the appellants died and his legal representatives were not impleaded. It was laid down by this Court that Order 41 Rule 4 could not be invoked because the Appellate Court had no power to proceed with the appeal and to reverse and vary the decree in favour of all the plaintiffs or defendants under that rule because if all the plaintiffs or defendants had appealed from the decree and any of them had died the appeal had abated so far as he was concerned under Order 22, Rule 3. The appeal of the surviving appellant could also not be heard because of the rule laid down in the State of Punjab v. Nathu Ram . According to that rule the abatement of an appeal means not only that the decree between the appellant and the deceased respondent becomes final, but also, as a necessary corollary, the appellate Court cannot in any way modify that decree directly or indirectly. The decision in Nathu Ram’s case (supra), was referred to in Pandit Siri Chand v. Jagdish Parshad Kishan Chand , where the decision was somewhat similar to Rameshwar Prasad’s case (supra). It was also emphasised that in a situation where two inconsistent orders or decrees would result the rule in Nathu Ram’s case would be applicable. It may be mentioned that in that*case an award had been made for payment of compensation in favour two brothers L & N. The State appealed against the award to the High Court. During the pendency of the appeal respondent L died and no application was made for bringing on record his legal representatives within the requisite period of limitation. The question was that since the appeal had bated against L what was its effect in appeal against N. It was observed that the consideration which would weigh with the Court in deciding whether the entire appeal had abated or not would be whether the appeal between the appellants and the respondents other than the deceased respondent could be said to be properly constituted or could be said to have all the necessary parties for the decision of the controversy before the Court. Another main test was whether the success of the appeal would lead to a decision which would be in conflict with the decision between the appellant and the deceased respondent. Thus, the Court will have to pass a decree contradictory to the one which had already become final with respect to the same subject matter between the appellant and the deceased respondent. It is arguable that the present case is distinguishable from the decisions in Rameshwar Prasad Pt. Siri Chand (supra). Here the Appellate Court could, under Order 41 Rule 4 of the Civil Procedure Code reverse the decree for specific performance since the defendants second party filed the appeal and Guha, the vendor, who died had not joined in the appeal. The decree for specific performance proceeded on a ground common to both sets of defendants. It could, therefore, be set aside on terms of the above provision. But there is a joint decree in favour of both sets of defendants for the receipt of Rupees 77,000/-. If the decree for specific performance is set aside that part of the decree will also have to go. It is not possible to understand how that can be done in the absence of the legal representatives of the deceased Guha. Moreover, the plaintiffs had claimed against Guha, in the alternative, a decree for substantial amount consisting of the part consideration paid and certain other amounts. If Guha had been alive or if his legal representatives had been impleaded in time the Court could, while setting aside the decree for specific performance, grant the. alternative prayer which was only made against Guha. This cannot be done now. In these circumstances, we are of the view that Order 41, Rule 4 of the Code of Civil Procedure cannot be of any avail to the appellants. The abatement of the appeal, so far as Guha was concerned, will prove fatal to the entire appeal as either inconsistent and contradictory decrees will have to be passed or proper relief cannot be granted in the absence of a necessary party against that party or his legal representatives.
15. Faced with the situation, Mr. M.L. Saggar, learned Counsel for the appellant, submitted that his application for condonation of delay for bringing legal representatives on record has been wrongly rejected. The submission of the learned Counsel was that prior to the decision of the Hon’ble Supreme Court in Mahant Niranjan Dass’s case (supra), the view of this Court was that limitation for bringing on record the legal representatives of the deceased was 3 years. That view of this Court was set aside in the aforesaid judgment of the Hon’ble Supreme Court. As in the present case, before the expiry of 3 years, Sampuran Singh had already made an application for bringing on record the legal representatives and after the decision by the Hon’ble Supreme Court, an application was also moved by the appellant for condonation of delay, therefore, no fault can be found with the appellant-defendant No. 2 in not moving the application for bringing on record the legal representatives of the deceased Chand Singh in time.
16. It was further contended by the learned Counsel for the appellant that immediately on coming to know that Sampuran Singh had made an application for withdrawal of his application for being brought on record the legal representatives of Chand Singh, the appellant moved an application for condonation of delay as well as for bringing on record the legal representatives of Chand Singh deceased under Order 22 Rule 3 of the Code of Civil Procedure. The appellant’s counsel made a reference to Section 5 of the Limitation Act which reads as under:
Explanation. – The fact that the appellant or the applicant was misled by any order, practice or judgment of the High Court in ascertaining or computing the prescribed period may be sufficient cause within the meaning of this section.
17. The contention of the learned Counsel for the appellant was that in view of the law laid down by this Court, which was subsequently overruled by the Hon’ble Supreme Court, the appellant-defendant No. 2 was misled qua the period of limitation. Therefore, he had sufficient cause to seek condonation of delay in view of explanation referred to above. The learned Counsel also placed reliance on the judgment of the Hon’ble Supreme Court in Ram Sumiran and Ors. v. D.D.C. and Ors. , to contend that as the appellant-defendant No. 2 is not literate, condonation of delay should have been allowed. In reply, Mr. G.S. Punia, learned Counsel for the respondents argued that even after coming to know about the judgment of Hon’ble Supreme Court, the appellant-defendant No. 2 did not take necessary steps to bring on record the legal representative and, therefore, his application for condonation of delay was rightly dismissed.
18. I have considered the arguments of the learned Counsel for the parties and find force in the submissions made by Mr. M.L. Saggar, learned Counsel for the appellant. It is not in dispute that prior to the judgment of the Hon’ble Supreme Court, the limitation for bringing on record the legal representatives of the deceased was treated to be three years. It is also not in dispute that within the stipulated period of three years, Shri Sampuran Singh, on the basis of the Will executed in his favour, had made an application for being brought on record the legal representatives of Chand Singh deceased. It is also not in dispute that after coming to know of the judgment of the Hon’ble Supreme Court that the limitation for bringing on record the legal representatives is 90 days, he moved an application for condonation of delay. In this situation, there was no occasion for the appellant to move an application for bringing on record the legal representatives of the deceased appellant earlier. The appellant-defendant No. 2 took prompt steps to move an application for bringing on record the legal representatives of Chand Singh deceased on coming to know that Shri Sampuran Singh had moved an application for withdrawal of his application. In this situation, it cannot be said that the appellant was in any way negligent in prosecuting this right. The facts of the present case show that there was sufficient cause with the appellant-defendant No. 2 for condonation of delay in filing the application.
In this view of the matter, this appeal is accepted, the impugned order dated 19.4.1995, passed by the Additional District Judge, Ludhiana, is set aside and the application moved by the appellate-defendant No. 2 under Section 5 of the Limitation Act for bringing on record the legal representatives of deceased appellant Chand Singh is allowed. The lower Appellate Court is directed to bring on record the legal representatives of Chand Singh deceased and proceed in the matter in accordance with law.
The parties through their counsel are directed to appear before the trial Court on 21.11.2006.