Hon’ble Pramod Kumar Srivastava, J.—Heard learned counsel for the appellant on the point of admission of second appeal as well as on framing of substantial question of law and perused the records.

2. Original Suit No. 1337/1982 (Smt. Thakura Devi v. Lallan and others) was instituted for the cancellation of registered sale-deed dated 20.1.1982, executed on behalf of Bali Raj @ Banshraj (husband of plaintiff Smt. Thakura Devi) in favour of defendant Shyama Devi, on the ground that Banshraj had died on 16.1.1982, but after his death the defendant had presented as impostor in Sub-Registrar’s Office as Banshraj and got executed sale-deed in question on 20.1.1982, regarding property earlier owned by Banshraj and after his death inherited by plaintiff.

3. After affording the opportunity of hearing to the parties, Court of Additional Munsif, Gorakhpur, had dismissed the original suit by its judgement dated 29.1.1996.

4. Aggrieved by the judgement of the trial Court, Civil Appeal No. 88/1986 (Smt. Thakura Devi v. Lallan and others) was preferred by the plaintiff of the original suit. This appeal was heard and allowed by the judgement dated 21.12.1987 of the Ist Additional District Judge, Gorakhpur. By this judgement, the first appellate Court had set aside the judgement dated 29.1.1986 of the trial Court and decreed the original suit, and cancelled the sale-deed in question dated 20.1.1982 with specific finding that the said sale-deed was executed after the death of Banshraj, by any impostor. It was held by first appellate Court that said sale-deed was fraudulently obtained and is liable to be cancelled.

5. It is also admitted fact between the parties that disputed sale-deed was executed on behalf of Banshraj in favour of Smt. Shyama Devi but plaintiffs had initially filed original suit against the three sons of Smt. Shyama Devi, with pleading that since Smt. Shyama Devi is dead, therefore her legal heirs are made as defendants. Then defendants had filed written-statement with averment that Smt. Shyama Devi is alive, and they had also filed the proof of her being alive. Then plaintiffs had moved amendment application for impleading Smt. Shyam Devi as defendant, which was allowed and then original purchaser Smt. Shyama Devi was impleaded as defendant in original suit.

6. It was also admitted fact that original suit was instituted on 23.10.1982, in which written-statement of original three defendants (sons of Smt. Shyama Devi) had filed written-statement (90-Ka) on 20.1.1985, in which they pleaded about Smt. Shyama Devi being alive. Then impleadment application (100-Ka) was moved by plaintiffs on 7.12.1985, which was allowed by the Court and Smt. Shyama Devi was impleaded as defendant.

7. After dismissal of original suit, the first appeal C.A No. 88/1986 was allowed with the finding as discussed above. Then present appeal was preferred by defendants of original suit, which was admitted for determining two substantial question of law, which are as under :

1. Whether the suit can be dismissed as barred by time if a necessary party is impleaded as defendant after the expiry of limitation for filing the suit ?

2. Whether the Court has jurisdiction to decide the suit on merit even if it is barred by time without recording his satisfaction that the omission to add a new defendant was due to the mistake?

8. Section 21 (i) of Limitation Act, 1963 reads as under.

“21. Effect of substituting or adding new plaintiff or defendant.—(1) Where after the institution of a suit, a new plaintiff or defendant is substituted or added, the suit shall, as regards him, be deemed to have been instituted when he was so made a party:

Provided that where the Court is satisfied that the omission to include a new plaintiff or defendant was due to a mistake made in good faith it may direct that the suit as regards such plaintiff or defendant shall be deemed to have been instituted on any earlier date.”

9. The proviso of above-mentioned Section 21(1) Limitation