Bhag Mal(Alias) Ram Bux & Ors vs Munshi(D) By Lrs

The High Court, as noticed hereinbefore, proceeded on the basis that the period of limitation would start running from the date on which declaratory decree was passed. According to the High Court, as declaratory decree was passed on 11.4.1969 and in any event, as Sher Singh had died on 25.2.1973, the suit was required to be filed by the appellants within three years from the said date and in view of the fact that the suit was filed on 2.11.1977, the same was barred by limitation.

9.1 In Sheodan Singh Vs. Daryao Kunwar rendered by four learned Judges of this Court, one of the questions that arose was whether the dismissal of an appeal from a decree on the ground that the appeal was barred by limitation was a decision in the appeal. This Court held:(SCR pp.308 H-309 B) " We are therefore of opinion that where a decision is given on the merits by the trial court and the matter is taken in appeal and the appeal is dismissed on some preliminary ground, like limitation or default in printing, it must be held that such dismissal when it confirms the decision of the trial Court on the merits itself amounts to the appeal being heard and finally decided on the merits whatever may be the ground for dismissal of the appeal."

In circumstances where no such proceeding is initiated under Order XII R. 9 (2) the abatement culminates into finally fixing the outcome of the suit. In that event the decision gains final shape at the precise juncture of successful abatement and that point serves as the closure of suit. Therefore the order of abatement gives a new starting point for the period of limitation. [See Abdullah Ashgar Alia (supra)] The provisions of statute of limitation cannot be construed in a pedantic manner. This is now a well known principle of law. Had the appeal been dismissed on merit, indisputably the period of limitation would have started from the date of dismissal of the Second Appeal. The respondents themselves preferred an appeal. The appeal was a continuation of a suit. Appellants herein could not, thus, have been held to be aware of the fact that during pendency thereon Bansi would die or the appeal shall abate. Let us consider a hypothetical situation. An appeal abates after three years of the judgment and decree passed by the first appellate court and in that situation the appellant would have no chance to reap the benefit thereof, if the submission of the learned counsel appearing on behalf of the respondent is accepted. The law, in our opinion, cannot be construed in a manner which would defeat the ends of justice.

We are not concerned herein with the effect of lack of territorial jurisdiction of the Court. The said decision therefore, in our opinion, has no application to the facts of the present case.

Reliance has also been placed by Mr. Gupta on Mamuda Khateen and Ors. Vs. Beniyan Bibi and Ors. [AIR 1976 Calcutta 415], wherein it was held that an order rejecting the memorandum of appeal following the rejection of an application under Section 5 of the Limitation Act for condonation of the delay in filing the appeal is not a decree but incidental to an order against which an application in revision under Section 115 of the Code may lie but no appeal under Order 43 Rule 1 of the Code will be maintainable. If the application under Section 5 is rejected, the order rejecting the said application cannot be a decree and, thus, the order rejecting the memorandum of appeal would merely be an incidental order.

For the reasons aforementioned, we are of the opinion that the High Court was not correct in holding that the suit of the appellants was barred by limitation. The appeal is allowed. There will, however, be no order as to costs.