Delayed filing of petition for substitution of L.R. barred by limitation.

This civil revision petition is directed against the order in I.ANo.502 of 1982 in O.S.No.184 of 1982on the file of the District Munsif, Thiruchengode.

2. Short facts are: Respondent’s father, Mottaian alias Adakkathia Gounder, filed the suit in O.S.No.527 of 1959, for partition and separate possession of his 1/5 share in the suit property. In that suit, on 17. 1960 a preliminary decree was passed. Later he filed

I. A.No.698 of 1965 for passing of a final decree. A commissioner was appointed to suggest the modes of division and he had filed his report. The defendants filed L.A.No. 1268 of 1967 putting forth their objections to the Commissioner’s report and sought appointment of a fresh commissioner. That application was dismissed on 7. 1967. A revision petition, filed against that order before this Court, was also dismissed. By then l.A.No.698 of 1965 was pending. On 15. 1970 the plaintiff died and so I.A.No.698 of 1965 was allowed to be dismissed on 30.6.1970. Later the respondent filed I.A.No.1424 of 1974 under 0.22, Rule 3, Code of Civil Procedure on 7. 1974 praying to implead himself as the legal representative of the deceased plaintiff alleging that though his father had left other heirs, by virtue of the will executed by his father on 18. 1970, he was the sole legatee, and he should be impleaded as the legal representative of the deceased plaintiff. His claim was resisted by the revision petitioners, who are defendants 3 to 6 in the suit, and other defendants. After enquiry, the court below had allowed the petition. Aggrieved by that order, defendants 3 to 6 have come forward with this revision petition.

3. Mr.S.P.Subramanian, learned counsel appearing for the revision petitioners, would submit that in the counter affidavit filed in the court below, they have disputed the will propounded by the respondent and they have also given the details of other legal representatives, viz. junior widow, 5 more sons and 3 daughters apart from the respondent through his two wives and without impleading them the order of the court below impleading the respondent alone is not correct and on that ground the petition ought to have been dismissed as not maintainable. Learned counsel further submitted that the plaintiff died on 15. 1970, that 90 days time is given for impleading the legal representatives and that time would come to an end by 8. 1970 as per Art. 120 of the Limitation Act; and similarly time to set aside an abatement is 60 days "and in this case that time will run from 8. 1970 and come to an end on 10. 1970 and by that time no petition was filed to set aside the abatement and while so this petition filed on 7. 1974 is barred by time. A.Percontra, Mr. V.Radhakrishnan, learned counsel appearing for the respondent, would submit that in a partition suit where a preliminary decree was passed, 0.22, Rules 3 and 4, C.P.C., are not applicable as there is no question of abatement at all, and so the question of limitation does not arise. He would further submit that admittedly the respondent is one of the sons of the deceased plaintiff and as such impleading him as legal representative is sustainable, that he can represent the entire estate of the plaintiff, that the claim of other legal representatives has to be worked out between themselves and that would not stand in the way of the respondent getting himself impleaded as the legal representative of the deceased plaintiff.

5. 1 have carefully considered the submissions made by the rival counsels. I shall first take up the question of limitation. Art.120 of the Limitation Act stipulates a period of 90 days for an application under the Code of Civil Procedure, 1908, to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a parly and the time has to be computed from the date of death of the plaintiif, appellant, defendant or respondent, as the case may be. As per Art.121 for an application under the Code of Civil Pro