An order of abatement in an appeal, while not an adjudication on merits, results in the finality of the decree. Consequently, the date of abatement serves as the starting point for the limitation period for subsequent suits based on that decree.

JUDGMENT:

S.B. SINHA, J :

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.1951/79 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.1 of the plaint, was affirmed. 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 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 the reagainst was preferred by the respondents herein before the High Court which was marked as RSA 1121 of 1969.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. As the heirs and/or legal representatives of Bansi were not brought on record within the prescribed period of limitation, the appeal was dismissed as having abated by an order dated 14.10.77. After the death of Bansi, 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, IInd 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 by the respondents herein, the question which arose for consideration before the High Court was as to whether 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 Court or not. 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 :

"Therefore, I find that the learned counsel for the appellants has rightly argued that both the Courts below fell in error in arriving 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, 1977when Judgment Exhibit P4 was rendered. February 25, 1973 when Sher Singh died is the date later than April 11, 1969 when the respondents obtained decree from the learned Additional District Judge,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 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." The appellants are, thus, before us. 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