CHENNAKESAV REDDY, J.

( 1 ) THIS revision petition raises two questions of interest and perhaps of some importance: (1) Whether a suit instituted against a sole defendant who had dies prior to the institution of the suit itself is non est, and the plaintiff cannot be permitted to bring on record the legal representatives of the deceased defendant in an application filed under Order 22 Rule 4 and Section 151 C. P. C. ; (2) what is the true scope and object of Section 21 of the limitation Act.

( 2 ) THE facts are not complicated and lie in the narrow compass. The respondent-plaintiff filed a suit O. S. No. 58 of 1973, before the Principal, District Munsiff, Tirupathi, on 5-2-1973, on the foot of a promissory note against the defendant Rasetti Radhakrishnaiah. He had died on 29-1-1973. The last date of limitation for filing the suit was 5-2-1973. The suit was posted for the appearance of the defendant to 27-6-1973. The suit summons sent for service of the defendant were returned unserved with the endorsement that the defendant was dead. Then the plaintiff filed a petition I. A. No. 637 of 1973, out of which this Civil Revision Petition, arises on 28-6-1973, to add the legal representatives of the deceased as defendants 2 to 6 in the suit. The applications was opposed on behalf of the legal representatives contending inter alia that the suit against a dead person is a nullity and that in any case the suit itself abated under Order 22 Rule 4 C. P. C. , on 28-4-1973, since no application for bringing the legal representatives of the deceased dependant was filed till 28-6-1973. It was also further urged that no application was also filed to set aside the said abatement. The learned District Munsiff allowed the application holding the suit filed against a dead defendant was not ab initio void and it could be continued against the legal representatives of the deceased defendant if they were brought on record before the expiry of the period of limitation for the suit. He, however, held that although the application filed by the plaintiff in this case since the omission to add the legal representatives was due to bonafide mistake as to the death of the defendant. The application was therefore, allowed on certain terms. This revision petition is therefore filed by the legal representatives of the deceased defendant.

( 3 ) THE first submission of the learned counsel for the petitioners is that the suit filed against a dead person is a nullity and substitution of legal representatives cannot be made. In support of his submission, great reliance was placed on a decision of the Orissa High Court in Cuttak Municipality v. Shyamasundar Behara, AIR 1977 Orissa 137. No doubt this decision lends all support to the contention of the learned counsel. The learned Judge after referring to the several rulings on the point summed up at page 138:"on the authorities cited above, it is clear that a suit filed against a dead person is a nullity and that no substitution can be made in place of the original defendant who was dead on the date of the institution of the suit". But a Division Bench of this High Court, which is binding on me, expressed a contrary opinion in Khaja Begum v. Gulam Mohiuddin, AIR 1976 Andh Pra 65. Gangadhara Rao, J. speaking for the Division Bench observed after a review of the case law on the question that the suit filed against the sole defendant who was dead even by the date of institution of the suit was not void ab initio and could be continued against the legal representatives of the deceased-defendant if their substitution was made within the period of limitation for the suit. Therefore, it must be held that the suit filed against the defendant on 5-2-1973, who had died even on 29-1-1973, was not a nullity. But in this case the period of limitation for filing the suit itself expired on 6-2-1973. The present application for bringing the legal representatives of the deceased -defendant on record was filed on 28-6-11973, long after

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