An application for substitution of the legal representatives of a deceased party must be made within the limitation period prescribed under Article 120 of the Limitation Act, 1963. Failure to do so will result in the abatement of the suit or appeal.

SOHAN NATH MODI, J.

( 1 ) ASHARAFILAL deceased and Narainlal filed a suit in the Court of Civil Judge. Bundi, against Durgalal, his sons Hiralal and Bhuvaneshwar and one Gapallal for redemption of mortgage of certain immovable property on payment of Rs. 3,280/and, in the alternative, for the possession of the property. The learned Civil Judge by his judgment D/- 16-5-1962 passed a preliminary decree for redemption of mortgage in favour of the plaintiffs on deposit of Rs. 3,280/-in Court within a month from the date of the preliminary decree. Aggrieved by the said decree, the defendants Durga-lal and his sons preferred an appeal in the Court of the District judge. Kotah. During the pendency of the appeal, plaintiff Asharafilal died on 6-41966. The defendants on 19-4-1966 moved an application along with the postcard which they had received from the two sons of Asharafilal intimating the date of Ashara-filals death. It was mentioned in the application that Asharafilal had died on 6-4-1966 and the defendant-appellants be given lime for finding out the legal representatives of the deceased and to take steps for their substitution. The learned District Judge on that application ordered that the hearing of the appeal be fixed on 14-7-1966 and in the meantime, the defendant-appellants may bring the legal representatives of deceased Asharafilal on record. No application was made for bringing the legal representatives of Asharafi Lal on record within 90 days of his death. The appeal therefore abated on the expiry of 90 days, that is, on 6-71966. On 14-7-1966 the defendant-appellant submitted an application with the prayer that the two sons of Asharafilal namely, Hariram and Dr. Shivram be brought on record. This application was opposed by Hariram and Dr. Shivram on the ground of limitation. The learned District Judge dismissed the application on 27-10-1966 as time-barred and dismissed the appeal as having abated. The relevant portion of the order dated 27-10-1966 passed by the learned District judge runs as under:-

"now it is an admitted position that Asharafilal one of the respondent-plaintiffs, died on 6-4-1966. This application being 90 days after his death is therefore clearly time-barred. That their earlier application dated 19-4-1966 for being allowed time to bring the legal representatives of Asharafilal on record without naming any of them cannot also extend the period of limitation. Hence this appeal abates against the deceased-respondent. Again as the interest of the deceased-respondent in these proceedings is joint and indivisible and cannot be separated from the rest of the respondents, it is also impossible to proceed with the appeal. Hence the appeal of Durgalal and others fails No order is made as to costs. "

The defendant Durgalal thereafter moved an application supported by his affidavit on 2-11-1966 for setting aside the abatement. The learned District Judge rejected that application. The present appeal is directed against the order of the learned district Judge rejecting the application for setting aside the abatement,

( 2 ) MR. N. M. Kasliwal. the learned advocate for the defendant-appellant, has raised the following points before me in this appeal:--

1. That the application dated 19-4-1966 had been made within the period of limitation of 90 days provided by Article 120 of the Limitation Act. 1963 and that application should have been treated by the learned district Judge as one for bringing on record the legal representatives of asharafilal under Rule 4 read with Rule 11 of Order 22. Civil P. C.

2. That the application dated 14-7-1966 for impleading the legal representatives of Asharafilal had been made while the period of limitation provided by Article 121 of the Limitation Act. 1963 had not expired and that application should have been treated by the lower appellate Court as an application for setting aside the abatement. Reliance has been placed on Bachanram v. Gram. Panchayat Jonda, AIR 1971 Punj 243.

3.