BHAG MAL (ALIAS) RAM BUX AND ORS. versus MUNSHI (D) BY LRS. AND ORS.

Citation: [2007] 1 S.C.R. 1114 · Decided: 17-01-2007 · Supreme Court of India · Bench: S.B. SINHA · Disposal: Appeal(s) allowed

Cited by 1 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

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BHAG MAL (ALIAS) RAM BUX AND ORS. 
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v. 
MUNSHI (D) BY LRS. AND ORS. 
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JANUARY 17, 2007 
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[S.B. SINHA AND MARKANDEY KATJU, JJ.] 
Punjab Limitation (Custom) Act, 1920 : 
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Article 2(b)-Suit for declaration, decreed-During pendency of 
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appeal, plaintiffs-Appel/ants and defendant died-LRs. of defendant not 
c brought on record-Order of abatement passed-As a result, appellant 
inherited suit property-Second suit for possession by appellants-
Challenged on the ground that second suit was not filed within 3 years 
from the date of declaratory decree and was barred by time-Held, Time 
limit began from date of order of abatement and not from the date of 
declaratory decree-Order of abatement although not amounts to passing 
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of decree on merits but it attains finality and gives rise to fresh cause of 
action-On facts, Suit not barred by time. 
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Appellants are sons of one 'S'. 'S' alienated the suit property to one 
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'B' by a registered sale deed dated 24.7.1953. The legality of the said sale 
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deed was questioned, on the premise that the same had been executed 
without any consideration and legal necessity by the appellants, who are the . 
legal heirs and representatives of the said 'S' by filing a suit. The said suit 
was dismissed. However, on an appeal preferred thereagainst by the 
appellants, the same was decreed. A Second Appeal thereagainst was 
preferred by the respondents 'S' died during the pendency of the Second 
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Appeal on 25.2.1973. 'B' also died during the pendency thereof on 4.10.1976. 
As the heirs and/or legal representatives of'B' were not brought on 
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record within the prescribed period oflimitation, the appeal was dismissed 
as having abated by an order dated 14.10. 77. After the death of 'B', the 
appellants inherited the suit land. 
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On 3.11.1977, appellants filed suit for possession in terms of the 
Punjab Limitation (Custom) Act, 1920. The said suit was decreed. The 
appeal preferred thereagainst was dismissed. 
In the Second Appeal preferred by the respondents, the question which 
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arose for consideration before the High Court was as to whether having 
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BHAG MAL (ALIAS) RAM BUX v. MUNSHI 
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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. High Court held in favour of 
respondents. 
In appeal to this Court, appellant contended 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 the High 
Court gave rise to a cause of action for filing a suit for possession. 
Respondents contended that the Court cannot extend the period of 
limitation and in any event, the order of abatement of a suit/appeal being 
not a final order of adjudication under Article (2)(b) of 1920 Act, a fresh 
suit will not be maintainable. 
Allowing the appeal, the Court 
HELD : 1. The High Court was not correct in holding that the suit 
of the appellants was barred by limitation. [Para 32J 11126-GJ 
2.1. The Punjab Limitation (Custom) Act, 1920 was enacted to amend 
and consolidate the law governing the limitation of suits relating to 
alienations of ancestral immovahle property and appointment of heirs by 
persons who follow custom in Punjab. It is not disputed that the provisions 
of the said Act would be applicable in the instant case, being a special law 
operating in the field. (Para 9J [1119-C-D] 
2.2. The provisions of Article 2(b) of the Act provides for two starting 
points of limitation; (1) the date on which the right to sue accures and (2) 
the date on which declaratory decree is obtained, whichever is latter. There 
is, therefore, no fixed period of limitation. The period of limitation, thus, 
would be reckoned from the date on which the right to sue has accrued or 
declaratory decree is obtained. [Para 12) (1120-E-F] 
3. The appellants are in possession of the suit property. Respondents 
filed a Second Appeal. During pendency of the Second Appeat both the 
parties to the deed ofsale dated 24.7.1953, died. It has not been disputed 
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SUPREME COURT REPORTS 
[2007] 1 S.C.R. 
that an application for sub

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