A.D.Koshal, J. - (1.) THE following pedigree -table leads assistance in a proper appreciation of the facts leading to this second appeal. Buji married twice, Bullan and Mee Kaur were her daughters from her first husband while Jagar Plaintiff was born to her from the loins of her second husband. The Defendants are the descendants of Molu son of Ranjit.
(2.) THE Dispute relates to the estate of Piari wife of Lekhi son of Ram Dass and brother of Buji. The Plaintiffs claim the estate as Piari's sole surviving heirs. During the pendency of the suit in the trial Court Bhullan died on the 22nd of September, 1970, but the suit was decreed on the 17th of November, 1970, without any attempt having been made by any of the parties to have her legal representatives brought on the record. The Defendants went up in appeal to the District Court at Jind before which they made an application on the 17th of April 1971, that the appeal be accepted and the suit dismissed as having abated by reason of Bhullan's death. After hearing arguments on the application Shri Ved Parkash Aggarwal. Additional District Judge, Jind accepted the appeal on the 22nd of July, 1971, and set aside the judgment and decree of the trial Court with a direction to it to allow the surviving Plaintiffs an opportunity to implead the legal representatives of Bhullan deceased and then to proceed with the case from the stage which it had reached at the time of Bhullans death. The parties were required to appear before the trial Court on the 2nd of August, 1971. When they so appeared, an application was made by the surviving Plaintiffs pray ing that the legal representatives of Bhullan be substituted for her as Plaintiffs. The application was, however contested by the Defendants on the ground, amongst others, that it was time -barred, that no extension of limitation had been claimed and that the suit had, therefore, abated in toto. The stand taken by the Defendants prevailed with the trial Court, with the result that the suit was dismissed as having abated in its entirety. The surviving Plaintiffs then went up in appeal which was accepted by Shri V. P. Aggarwal, Additional District Judge, Jind on the 15th of January, 1973. He held on the authority of Bachna Ram and Ors. v. The Gram Panchayat Jonda, 1970 Cur. L. J. 906 that an application praying for legal representatives of a deceased party to be brought on the record could be treated as an application for extension of time even though no prayer for such extension was made therein. He further held that the surviving Plaintiffs had the right to make an application for legal representatives of (sic) being brought on the record within 90 days of her death, that the suit was decreed before the expiry of the said period of 90 days, that no suit was pending on the 90th day of that period, that the surviving Plaintiffs did not have, throughout that period, the opportunity of making an application for having the legal representatives of Bhullan substituted for her and that therefore, they could move the application for setting aside the abatement as soon as the suit was restored with the trial Court, i.e. on the 2nd of August, 1971. In this connection he placed reliance on Gurbux Singh v. Asa Singh, A. I. R. 1952 Pepsu 40. Dissatisfied with the order of the learned Additional District Judge, the Defendants have come up in second appeal to this Court. Mr Anand Swaroop, Learned Counsel for the Appellants, does not challenge the proposition that an application for substitution of legal representatives of a deceased party may be treated as an application for extension of the time provided for setting aside an abatement. He contends, however, that the ratio of the Pepsu authority is not applicable to the facts of the present case and that the surviving plain tiffs are not entitled to have the time for setting aside the abatement extended till after the normal period of 180 days reckoned from the date of death of the deceased party as provided for in Articles 120 and 121 of the Limitation Act, 1963. The contention has force. In Gurbux Singh's case (supra) a suit had been instituted on the 21st of Jeth, 1978 Bk and it had been stayed as the records had been sent for by a special tribunal appointed by the Ruler of Patiala State. The case was returned to the trial Court on the 29th Sawan, 2003 Bk. When the parties were summoned by the Court, it transpired that the sole plain tiff had died on the 2nd of Maghar, 1998 Bk. The trial Court held that the suit had abated. Kartar Singh, J., in revision, reversed the order of the trial Court holding that there was sufficient cause as contemplated by Section 5(sic) of the Limitation Act and Rule 9 of Order XXII of the Code of Civil Procedure as no case was pending before the trial Court during the 90 days following the death of the Plaintiff so that an application made to it would have been fruitless and that, therefore, the abatement should be set aside. Kartar Singh, J.'s judgment does not mention as to when the application for setting aside the abatement was made after the records had been received back by the trial Court and as to whether the party making the application was aware about the records having been so received. In the present case the surviving Plaintiffs were guilty of inordinate delay in making the application for impleading the legal representatives of Bhullan and for having the abatement set aside, even though they were fully aware of the pendency of the appeal in the District Court and in spite of the fact that the Defendants had pointedly referred to the death of Bhullan and the consequent abatement of the suit in their application dated the 17th on April, 1971. The failure of the surviving Plaintiffs to make the necessary application from that date onwards right up to the 22nd of July, 1971, remains wholly unexplained and, in fact, appears to be in explicable except on the basis of sheer negligence which cannot be condoned. In circumstances similar to those prevailing in the present case Grover, J., in Harbans Lal v. Bela Singh,, 1966 Cur. LJ 98 Also refused to condone the delay and distinguished them from those obtaining in Gurbax Singh's case.
(3.) THE contention raised on behalf of the surviving Plaintiffs in this behalf is that Bhullan having died before the decision of the suit by the trial Court, the decree passed in her favour and, therefore, as a whole was a nullity, i.e., non est that no appeal could be filed against such a decree, that the appeal actually filed by the Defendants must itself be treated to be non est and that the ratio of Gurbux Singh's case fully comes into play in relation to the circumstances with which we are here concerned. This contention is without substance. An appeal in law is a continuation of the suit and the appeal of the Plaintiffs was a continuation of the original suit. However, if the decree and the appeal be both regarded as non est, then the suit would have to be treated as pending throughout in the trial Court. The Plaintiffs cannot have it both ways and while treating the decree and the appeal to be non est, go further and say that the suit itself have ceased to be pending with the trial Court. The position simply is this. After the appeal was filed it was de facto pending with the appellate Court and must be regarded as a continuation of the suit so that there was no impediment in the way of surviving Plaintiffs making an application for substitution of Bhullan's legal representatives in her place. If advantage is to be given to the Plaintiffs of the legal flaw in the decree and the consequences flowing therefrom, then that flaw must also be taken into consideration in so far as the pendency of the suit in the trial court is concerned and it must be held that the decree and appeal being both nullities, the suit must be deemed to be pending in the trial Court so that there was no impediment in the way of the surviving Plaintiffs making the necessary application all through to the trial Court itself. Their failure to move either Court right up to the 22nd of July, 1971, when an application for setting aside the abatement was hopelessly time -barred, disentitles them to any extension of time, the responsibility for the delay falling squarely on their shoulders and being attributable to nothing but to their gross negligence. In this view of the matter I set aside the finding of the lower appellate Court on the point, and bold that the suit abated on the expiry of (sic) days, of the death of Bhullan and that no extension of time can be granted to the Plaintiffs for having the abatement set aside.;