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TMI Blog2007 (1) TMI 544X X X X Extracts X X X X X X X X Extracts X X X X ..... he premise that the same had been executed without any consideration and legal necessity by the appellants herein, who are the legal heirs and representatives of the said Sher Singh by filing a suit. The said suit was dismissed. However, on an appeal preferred thereagainst by the appellants, the same was decreed by a judgment and decree dated 11.4.1969. A Second Appeal thereagainst was preferred by the respondents herein before the High Court which was marked as RSA 1121 of 1969. Sher Singh died during the pendency of the Second Appeal on 25.2.1973. Bansi also died during the pendency thereof on 4.10.1976. As the heirs and/or legal representatives of Bansi were not brought on record within the prescribed period of limitation, the appeal was dismissed as having abated by an order dated 14.10.77. After the death of Bansi, therefore, the appellants herein inherited the suit land. A suit for possession in terms of the Punjab Limitation (Custom) Act, 1920 was filed by the appellants herein on 3.11.1977 before the Sub- Judge, IInd Class Gurgaon. The said suit was decreed. The appeal preferred theregainst was dismissed by a judgment and decree dated 26.3.1979. In the Second Appeal prefe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to amend and consolidate the law governing the limitation of suits relating to alienations of ancestral immovable property and appointment of heirs by persons who follow custom in Punjab. It is not disputed before us that the provisions of the said Act would be applicable in the instant case, being a special law operating in the field. Section 8 of the said Act reads as under: " 8. Benefit of declaratory decree: When any person obtains a decree declaring that an alienation of ancestral immovable property or the appointment of an heir is not binding on him according to custom, the decree shall enure for the benefit of all persons entitled to impeach the alienation or the appointment of an heir." Article 2 appended to the Schedule of the said Act reads as follows: "2. A Suit for possession of ancestral immovable property which has been alienated on the ground that the alienation is not binding on the plaintiff according to custom \026 (a) if no declaratory decree of the nature referred to in Article I is obtained. 6 years As above (b) if such declaratory decree is obtained 3 years The date on which the right to sue accrues or the date on which declaratory decree is obtained ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o bring on record the legal representatives of the deceased-defendant shall be of the heirs of the deceased and not of the person who is domimus litis." Indisputably, requirements of the law to bring the heirs and legal representatives of the deceased on records, were not complied with. 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. The question which arises for our consideration is as to what would be the date on which declaratory decree can be said to have been obtained by the appellants. Mr. Gupta, learned counsel appearing on behalf of the respondents himself has relied upon a decision in Abdulla Asghar Alia and Ors. Vs. Ganesh Das Vig [AIR 1933 PC 68], wherein the judicial Committee, in no uncertain terms stated the law as under: " In the cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chagla, C.J. In K.K. Porbunderwalla Vs. CIT(ITR p.66) to the following effect: (SCR P.176) "Although the Appellate Assistant Commissioner did not hear the appeal on merits and held that the appeal was barred by limitation his order was under Section 31 and the effect of that order was to confirm the assessment which had been made by the Income Tax Officer." 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." Yet again in Union of India and Others Vs. West Coast Paper Mills Ltd. And Anr. [(2004) 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ement, have to be considered liberally, A simple payer for bringing the legal representatives on record without specifically praying for setting aside of an abatement may in substance be construed as a prayer for setting aside abatement." We need to read the liberal trend on setting aside the abatement and the issue of 'finality of decision on abatement' together. It is to be noted that considerable leeway has been accorded to proceedings to set aside abatement. Thus it follows that only because abatement leads to serious consequences, the emphasis on ample opportunity to set aside abatement has been laid down. 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, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is difficult, indeed, to see how the direction to amend the description of the parcel which formed part of the decree came within the scope of the suit, which was in no respect a suit for rectification..." 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. We have noticed hereinbefore that the said view has not been accepted by this Cour ..... X X X X Extracts X X X X X X X X Extracts X X X X
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