Holding

An order of abatement, though not a decree on merits, attains finality and gives a fresh cause of action, so the limitation period for the suit for possession begins from the date of abatement, not from the declaratory decree.

Summary

The appellants, sons of Sher Singh, inherited land sold by their father to Bansi. They challenged the sale in a suit that was dismissed, but on appeal a declaratory decree was obtained in their favour. While the decree was pending, both Sher Singh and Bansi died, and the appeal was abated on 14‑Oct‑1977 because Bansi's heirs were not brought on record. The appellants then filed a suit for possession under the Punjab Limitation (Custom) Act, 1920 on 3‑Nov‑1977. The High Court held the suit barred by limitation, reasoning that the three‑year period started from the date of the declaratory decree. The Supreme Court examined Article 2(b) of the 1920 Act, held that an order of abatement, though not a decree on merits, attains finality and creates a fresh cause of action, thereby resetting the limitation period. Consequently, the suit was not time‑barred and the High Court’s decision was reversed.

Issues considered

The suit for possession filed after the abatement of the appeal is barred by limitation under Article 2(b) of the Punjab Limitation (Custom) Act, 1920.
Whether an order of abatement of an appeal gives rise to a new cause of action and resets the limitation period.

Legislation cited

Code of Civil Procedure, 1908s. Order XII Rule 9(2), s. Order XXII Rule 3
Limitation Act, 1963s. Section 3
Punjab Limitation (Custom) Act, 1920s. Article 2(b), s. Section 8

Subjects

LimitationAbatementPunjab Limitation (Custom) ActDeclaratory decreeCause of actionInheritancePossession suit

Judgment

i-

A BHAG MAL (ALIAS) RAM BUX AND ORS.
'
~

v.
~

MUNSHI (D) BY LRS. AND ORS.

JANUARY 17, 2007

B [S.B. SINHA AND MARKANDEY KATJU, JJ.]

Punjab Limitation (Custom) Act, 1920 :
<
..._
Article 2(b)-Suit for declaration, decreed-During pendency of "'·
appeal, plaintiffs-Appel/ants and defendant died-LRs. of defendant not
c brought on record-Order of abatement passed-As a result, appellant
inherited suit property-Second suit for possession by appellants-
Challenged on the ground that second suit was not filed within 3 years
from the date of declaratory decree and was barred by time-Held, Time
limit began from date of order of abatement and not from the date of
declaratory decree-Order of abatement although not amounts to passing
D of decree on merits but it attains finality and gives rise to fresh cause of
action-On facts, Suit not barred by time.

Appellants are sons of one 'S'. 'S' alienated the suit property to one
1 "'
'B' by a registered sale deed dated 24.7.1953. The legality of the said sale
deed was questioned, on the premise that the same had been executed
E without any consideration and legal necessity by the appellants, who are the .
legal heirs and representatives of the said 'S' by filing a suit. The said suit
was dismissed. However, on an appeal preferred thereagainst by the
appellants, the same was decreed. A Second Appeal thereagainst was
preferred by the respondents 'S' died during the pendency of the Second
F Appeal on 25.2.1973. 'B' also died during the pendency thereof on 4.10.1976.

As the heirs and/or legal representatives of'B' were not brought on --~·"'
record within the prescribed period oflimitation, the appeal was dismissed
as having abated by an order dated 14.10. 77. After the death of 'B', the
appellants inherited the suit land. ..--
G
On 3.11.1977, appellants filed suit for possession in terms of the
Punjab Limitation (Custom) Act, 1920. The said suit was decreed. The
appeal preferred thereagainst was dismissed.
~
In the Second Appeal preferred by the respondents, the question which
H arose for consideration before the High Court was as to whether having
1114
BHAG MAL (ALIAS) RAM BUX v. MUNSHI 1115

-~ ) regard to the fact that the order dated 14.10.1977 in terms whereof A
abatement of the Second Appeal was recorded being not a decree within the
meaning of Order XXII of the CPC, the appellants were obligated to file a
suit within a period of three years from the date of the judgment and decree
passed by the First Appellate Court or not. High Court held in favour of
respondents.
B
In appeal to this Court, appellant contended that the High Court fell
)( into an error in passing the impugned judgment and decree so far as it
failed to take into consideration that abatement of an appeal before the High
Court gave rise to a cause of action for filing a suit for possession.
c
Respondents contended that the Court cannot extend the period of
limitation and in any event, the order of abatement of a suit/appeal being
not a final order of adjudication under Article (2)(b) of 1920 Act, a fresh
suit will not be maintainable.
-f·

Allowing the appeal, the Court D
j
r HELD : 1. The High Court was not correct in holding that the suit
of the appellants was barred by limitation. [Para 32J 11126-GJ

2.1. The Punjab Limitation (Custom) Act, 1920 was enacted to amend E
and consolidate the law governing the limitation of suits relating to
alienations of ancestral immovahle property and appointment of heirs by
persons who follow custom in Punjab. It is not disputed that the provisions
of the said Act would be applicable in the instant case, being a special law
operating in the field. (Para 9J [1119-C-D]
F
~
~
2.2. The provisions of Article 2(b) of the Act provides for two starting
points of limitation; (1) the date on which the right to sue accures and (2)
the date on which declaratory decree is obtained, whichever is latter. There
is, therefore, no fixed period of limitation. The period of limitation, thus,
would be reckoned from the date on which the right to sue has accrued or G
declaratory decree is obtained. [Para 12) (1120-E-F]

3. The appellants are in possession of the suit property. Respondents
filed a Second Appeal. During pendency of the Second Appeat both the
parties to the deed ofsale dated 24.7.1953, died. It has not been disputed
H
1
~·

1116 SUPREME COURT REPORTS [2007] 1 S.C.R.
-\ '.--

A that an application for substitution was required to be filed so a to save the
appeal from having become abated within the prescribed period oflimitation.
The heirs and legal representatives of 'S' were not necessary to be brought
on record as they were already on record. However, legal heirs and/or
representatives of'B', namely, the respondents were required to be brought
on record by them. Thus, requirements of the law to bring the heirs and
B legal representatives of the deceased on records, were not complied with.
(Paras 13, 15] (1120-F-H, 1121-C]
"
4. In circumstances where no such proceedings is initiated under
Order XII R. 9(2) the abatement culminates into finally fixing the outcome
c 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 oflimitation. [Para 25) (1124-H, 1125-A]
1
Abdulla Asghar Alia and Ors. v. Ganesh Das Vig, AIR (1933) PC 68,
D
relied on. ....
1
Ajudhia Prasadv. The UP. Government, AIR (1947) Allahabad 390;
Shyam Sundar Sarma v. Pannalal Jaiswal and Ors., (2005] 1 SCC 436;
Union of India and Others v. West Coast Paper Mills Ltd. and Anr., [2004]
E 2 sec 747, referred to.

5. The provisions of statute of limitation cannot be construed in a
ped~ntic manner. Had the appeal been dismissed on merit, indisputably the
period of limitation would have started from the date of dismissal of the
F Second Appeal. The respondents themselves preferred an appeal. The
appeal was a continuation of a suit. Appellants could not, thus, have been y
,...._
held to be aware of the fact that during pendency thereon 'B' would die or
the appeal shall abate. The law, cannot be construed in manner which would
defeat the ends of justice. [Para 26) (1125-B-C]

G 6. When an appeal/suit abates, the same may not amount to adjudication
"
of a decree on merit but indisputably it would attain finality. Decision on
merits is not the only test to determine the finality of decision. The
declaratory decree, in that view of the matter passed in favour of the
respondents had attained finality only when the order dated 14.10.1977 was
.;_
-
passed. [Para 27) [1125-D-E)
H
BHAG MAL (ALIAS) RAM BUX v. MUNSHI [SINHA, J.] 1117

- ....., ;
Kunhayammed and Ors. v. State of Kera/a & Anr., [2000] 6 SCC 359;
Mithailal Dalsangar Singh and Ors. v. Annabai Devram Kini and Ors., AIR
(2003) SC 4244; Sohan Lal v. Raghunath Prasad and Ors., AIR (1981)
Allahabad 235, referred to.
A

Harendra Lal Roy Chowdhuri v. Haridasi Debi and Ors., AIR (1914)

.. lo.
PC 67, held inapplicable.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2370of1998.
B

From the Judgment and Order dated 2.5 .1997 of the High Court of
Punjab and Haryana at Chandigarh in R.S.A. No. 1951/1979.
c
Sunil Kumar, Sr. Adv., Amit Kumar, Rekha Bakshi, Kumar Brijnandan
for the Appellants.

Balbir Singh Gupta for the Respondents.

The Judgment of the Court was delivered by D
91

S.B. SINHA, J : l. Interpretation of the provisions of the Punjab
Limitation (Custom) Act, 1920 falls for our consideration in this appeal which
arises out of a judgment and decree dated 2.5.1997 passed by a learned
Single Judge of the Punjab and Haryana High Court in RSA No.1951179
E
reversing the judgment and decree dated 26.3 .1979 whereby affirming the
judgment and decree passed by the Subordinate Judge (Second Class),
Gurgaon dated 4.11.1978 decreeing the suit of the appellants herein in
possession of 1102/1615 share of the agricultural land as specified in para
no. I of the plaint, was affirmed.
-r_
~·
F
2. The fact of the matter is not in dispute. Appellants are sons of one
Sher Singh. Sher Singh alienated the suit property to one Bansi by a
registered deed of sale dated 24.7.1953. The legality or validity of the said
deed of sale came to be questioned, inter alia, on the 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
G
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 1121of1969. H
+
1118 SUPREME COURT REPORTS [2007) 1 S.C.R.

A 3. 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.

4. As the heirs and/or legal representatives of Bansi were not brought
on record within the prescribed period oflimitation, the appeal was dismissed
as having abated by an order dated 14.10.77. After the death of Bansi,
B 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, Ilnd 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 preferred
c by the respondents herein, the question which arose for consideration
bef9re the High Court was as to ·.vhether having regard to the fact that the
order dated 14.10.1977 in terms whereof abatement of the Second Appeal
was recorded being not a decree within the meaning of Order XXII of the
CPC, the appellants were obligated to file a suit within a period of three years
from the date of the judgment and decree passed by the First Appellate
D Court or not.
-(
I

5 . Opining that an order directing abatement of suit/appeal does not
amount to adjudication thereof on merit, it was held that the period of
limitation would start running from 11.4.1969, stating:

E "Therefore, I find that the learned counsel for the appellants
has rightly argued that both the Courts below fell in error in an·iving
at a conclusion that the decrees passed by the Courts below had
merged with the decree of this Court and that period of limitation
is to be reckoned from October 14, 1977 when Judgment Exhibit P4
F was rendered. February 25, 1973 when Sher Singh died is the date
la!er than April 11, 1969 when the respondents obtained decree
from the learned Additional Districr Ju~ge,Gurgaon. Therefore, even
if period of limitation is reckoned from February 25, 1973, that
period of three years for filing a declaratory suit came to an end
long before November 3, 1977 when the suit was filed by the
G respondents. Hence, the suit filed by the respondents was clearly
barred by limitation and on that score, deserved to be dismissed.
The view taken by the Courts below ie erroneous in the eye of law
and cannot be allowed to sustain."

H 6. The appellants are, thus, before us.
BHAG MAL (ALIAS) RAM BUX v. MUNSHI [SINHA, J.] 1119

- 7. Submission of Mr. Sunil Kumar, learned senior counsel appearing on
behalf of the appellants in support of the appeal is that the High Court fell
into an error in passing the impugned judgment and decree so far as it failed
to take into consideration that abatement of an appeal before the High Court
A

gave rise to a cause of action for filing a suit for possession.

8. Mr. Gupta, learned counsel appearing on behalf of the respondent B
on the other hand would submit that the Court cannot extend the period of

- limitation and in any event, the order of abatement of a suit/appeal being
not a final order of adjudication under Article (2)(b) of 1920 Act, a fresh suit
will not be maintainable.
c
9. The Punjab Limitation (Custom) Act, 1920 (The said Act) was
enacted 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. D

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 E
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:

- )I

"2. A Suit for possession of
ancestral immovable
F

property which has been
alienated on the ground
that the alienation is not G
binding on the plaintiff
according to custom
..
' (a) if no declaratory decree 6 years As above
of the nature referred to
in Article I is obtained.
H
1120 SUPREME COURT REPORTS (2007] I S.C.R

A (b) if such declaratory 3 years The date on which the
decree is obtained right to sue accrues or
the date on which
declaratory decree is
obtained, whichever is
latter."
B
10. It is no doubt true that in tenns of Section 3 of the Limitation Act,
1963 as also the provisions of the said Act, a suit must be filed within the ~

prescribed period of limitation. The Civil Court has no jurisdiction to extend
the same.
c 11. However, the provisions of the Limitation Act should be construed
in a broad manner. Different provisions of the Limitation Act may require
different constructions, as for example, the Court exercises its power in a
given case liberally in condoning the delc;y in filing an appeal under Section
5 of the Limitation Act. However, even for the purpose of delay and the
D grounds for condonation of delay may have to be taken into consideration
for examining its correctness by the court in each case. We, however, may 1' ~
not be understood to lay down a law that the same principle would apply
in case of construction of Section 3 of the Limitation Act.

E 12. The provisions of Article 2(b) of the 1920 Act provides for two
starting points of limitation; (1) the date on which the right to sue accures
and (2) the date on which declaratory decree is obtained, whichever is latter.
There is, therefore, no fixed period of limitation. The period of limitation,
thus, would be reckoned from the date on which the right to sue has accrued
or declaratory decree is obtained.
F ...:
~.

13. It is not in dispute. that appellants are in possession of the suit

G
property. Respondents herein filed a Second Appeal. During pendency of
the Second Appeal, both the parties to the deed of sale dated 24.7.1953,
died. It has not been disputed before us that an application for substitution
was requh"ed to be filed so as to save the appeal from having become abated
.. ,.
I

within the prescribed period of limitation. The heirs and legal representatives
of Sher Singh were not necessary to be brought on record as they were
already on record. However, legal heirs and/or representatives of Bansi, .,
namely, the respondents herein were required to be brought on record by
them.
H
BHAG MAL (ALIAS) RAM BUX v. MUNSHI [SINHA, J.] 1121

14. Our attention has been drawn to an amendment of the Punjab and A
Haryana High Court in Order XXII Rule 3 of the Civil Procedure Code, which
reads as under:

"2A. Every advocate appearing in the case who becomes
.
I
'
aware of the death of a party to the litigation (where he appeared
for him or not) must give intimation about the death of a party to
B
party to the Court and to the person who is dominus litis.

2B. The duty to 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 domi.mus litis." c
15. Indisputably, requirements of the law to bring the heirs and legal
representatives of the deceased on records, were not complied with.

16. The High Court, as noticed hereinbefore, proceeded on the basis
that the period of limitation would start running from the date on which
D
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. E

17. 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.

F
- > 18. Mr. Gupta, learned counsel appearing on behalf of the respondents
himself has relied upon a decision in Abdulla Asghar Alia and Ors. v.
Ganesh Das Vig, AIR (1933) PC 68, wherein the judicial Committee:, in no
uncertain terms stated the law as under:

"In the case now before their Lordships it is manifest that G
there was an ·order of the appellate Court, and that it did deal
judicially with the matters before it. The Judicial Commissioner
considered the judgment debtor's contention that his appeal had
not abated and held that it had. He considered the prayer for revival
of the arbitration and refused it. He rejected the· application to set H
1122 SUPREME COURT REPORTS [2007] 1 S.C.R.

A aside the abatement. Whether the order made was right or wrong
is immaterial, there was no appeal against it and it was in the
circumstances clearly final. Their Lordships think that when an
order is judicially made by an appellate Court, which has the
effect offinally disposing of an appeal, such an order gives a new
starting point for the period of limitation prescribed by Article
B 182(2) of the Act of 1908... "
[Emphasis supplied]

19. InAjudhia Prasadv. The UP. Government, AIR (1947) Allahabad
390, a Division Bench of the Allahabad High Court opined as follows:
c
" .. .I take up first the question of limitation. The argument on
behalf of the appellant is that there was an automatic abatement of
the proceedings on the death of the defendant on 4.6.1939 and, as
the application for execution was made more than three years from
that date, it is time barred. No doubt as the law is, there was.an
D
automatic abatement on 4.6.1939, but where there has been an order
1
of the Court decla!"ing an appeal to have abated, the period of
limitation under Article 182, Limitation Act should be reckoned from
that date ... "

E 20. The question came up for consideration in a different context before
a three-Judge Bench of this Court in Shyam Sundar Sarma V. Pannalal
Jaiswal and Ors., [2005] 1 SCC 436 wherein P.K. Balasubramanyan, J.
speaking for the Bench opined that although an appeal was found to be
barred by limitation for the purpose ofreckoning the period of limitation, the
F date on which the appeal was dismissed by the Court, the same being ,_..
barred, shall be the relevant date stating : "

"9. The specific question involved came to be considered by
this Court in Mela Ram and Sons v. CIT This Court held that an
appeal presented out of time is an appeal and an order dismissing
G it as time-barred is one passed in an appeal. This Court referred to
and followed the view taken by the Privy Council and by this Court
in the two respective decisions above-referred to. This Court
quoted With approval the observations of Chagla, C.J. ln K.K.
Porbunderwalla v. CIT, (ITR p.66) to the following effect: (SCR
H P.176)
BHAG MAL (ALIAS) RAM BUX v. MUNSHI [SINHA, J.] 1123
~ )

"Although the Appellate Assistant Commissioner did A
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 v. Daryao Kunwar rendered by four learned B
' 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)
c
" 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
D
·"'
and finally decided on the merits whatever may be the ground
for dismissal of the appeal."

21. Yet again in Union of India and Others v. West Coast Paper Mills
Ltd And Anr., [2004] 2 SCC 747, this Court had occasion to consider the E
provisions oflimitation contained in Section 46-A of the Railways Act, 1890.
Therein this Court was considering the applicability of Article 113 vis-a-vis
Article 58 of the Limitation Act, 1963. In that case the plaintiff had filed a
suit for refund. A claim was also preferred by the defendant before the
_.. )'
Railway Tribunal. The Tribunal was only entitled to make a declaration that
F
freight charges are unreasonable or excessive. It did not have the jurisdiction
to execute its own order. Although the power of the tribunal in tenns of
Section 46-A of the Railways Act was ·final, this Court held that the
jurisdiction of the Court under Article 136 thereby was not taken away. In
relation to the subsequent suit filed by the plaintiff for recovery of the
amount after disposal of the appeal preferred by the plaintiff therefrom, it G
was held that the period of limitation would start running from the date on
which this Court had delivered its judgment inter alia stating:
....... )

" 21. A distinction furthermore, which is required to be noticed
is that whereas in terms of Article 58 the period of three years is H
1124 SUPREME COURT REPORTS [2007] l S.C.R

to be counted from the date when "the right to sue first ·accrues",
"' r-

A
in terms of Article 113 thereof, the period of limitation would be '
counted from the date "when the right to sue accrues." The
distinction between Article 58 and Article 113 is, thus, apparent
inasmuch as the right to sue may accrue to a suitor in a given case
at different points of time and, thus, whereas in terms of the Article
B 58 the period of limitation would be reckoned from the date on
.-'
which the cause of action arose first, in the latter the period of :A -~

limitation would be differently computed depending upon the last
day when the cause of action therefor arose."
("';
c 22. The Court .while laying down the aforementioned principle applied
the doctrine of merger as laid dowrt in the dedsion of this Court in
Kunhayammed and Ors. v. State of Kera/a & Anr., [2000] 6 SCC 359.

23. In Mithai/al Dalsangar Singh and Ors. v. Annabai Devram Kini
and Ors., AIR (2003) SC 4244 this court observed the effect of abatement
D ....
in the following terms: i

"In as much as the abatement results in denial of hearing on the
merits of the case, the provision of abatement has to be construed
strictly. On the other hand, the prayer for setting aside an abatement
E and the dismissal consequent upon an abatement, 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."
F "
.......
24. 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
G abatement has been laid down.

25. In circumstances where no such proceeding is initiated under Order
i ~
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
H successful abatement and that point serves as the closure of suit. Therefore
BHAG MAL (ALIAS) RAM BUX v. MUNISH [SINHA, J.] 1125

the order of abatement gives a new starting point for the period of limitation. A
[See Abdullah Ashgar Alia (supra)]

26. 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 B
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
c
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.

27. In fine, when an appeal/suit abates, the same may not amount to D
adjudication of a decree on merit but indisputably it would attain finality.
Decision on merits is not the only test to determine the finality of decision.
Finality gained due to abatement is an illustration of the aforementioned
variety. The declaratory decree, in that view of the matter passed in favour
of the respondents had attained finality only when the order dated 14.10.1977
was passed. E

28. Our attention was drawn by Mr. Gupta to a decision in Harendra
Lal Roy Chowdhuri v. Haridasi Debi and Ors., AIR (1914) PC 67. Therein
a mortgage suit was filed. The question which arose for consideration
therein was as to whether an order directing to amend the description of the F
parcel which formed part of the decree came within the scope of the suit
which was in no respect a suit for rectification. It was in the aforementioned
fact situation held :

" ... The learned Judge accepted this contention and accordingly
held that property situate in Calcutta was included in the mortgage G
and that he had jurisdiction. No such decision, if erroneous, could
extend the jurisdiction of a Court of limited territorial jurisdiction,
and therefore the validity of this decree is open to challenge by the
··~
present defendants, who were no parties to proceedings. SimiJarJy,
the direction of the said Judge that the description of the parcel in H
...

1126 SUPREME COURT REPORTS [2007) l S.C.R.

A question should be amended (even if it was effective between the
parties to that suit) cannot affect the present defendants, whose
title is of earlier date, or render valid the registration if they can
maintain their contentions relating thereto. 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
B was in no respect a suit for rectification ... "

29. 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.
c 30.Reliance has also been placed by Mr. Gupta on Mamuda Khateen
and Ors. v. Beniyan Bibi and Ors., AIR (l 976) 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
D to an order against which an application in revision under Section 115 of the
Code may lie but no· appeal under Order 43 Rule l of the Code will be
maintainable. If the application under Section 5 is rejected, the order 1

rejecting the said application cannot be a decree and, thus, the order
rejecting the memorandum of appeal would merely be an incidental order.

E 31. We have noticed hereinbefore that the said view has not been
accepted by this Court in Sohan Lal v. Raghunath Prasad and Ors., AIR
(l 981) Allahabad 235 whereupon Mr. Gupta, learned counsel placed strong
reliance. The question which arose for consideration therein was as to
whether an order of abatement would amount to a decree for the purpose
F of maintainability of an appeal thereagainst although there existed no
provision therefor.

32. 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
G costs.

D.G. Appeal allowed.