After the expiry of 90 days, the appeal stands abated unless the appeal survives against the surviving appellants.
Rule II postulates the applicability of this order to appeals.
719 of 1970 dated 21 2 1979.
Indisputably, the gift deed executed by the donor in favour of the respondent donee clearly mentioned the mortgage and made a part of the deed of gift.
Thus this appeal by special leave.
Thereby, a preliminary decree for redemption was granted giving appropriate time to the mortgagor to deposit the amount in the Court by decree dated 29 4 1979.
Substitution is allowed.
The respondent had filed the suit for redemption of usufructuary mortgage dated 15th Awarded 1321 Fasli, 1912 D., hypothecated for a sum of Rs 9200 O.S. by their predecessors in interest.
On appeal, it was companyfirmed.
It is also reported that respondent 1 died in the year 1983 and application for substitution was pending.
By operation of Order XXII, Rule 4 read with Rule II of Civil Procedure Code, when one of two or more defendants dies and the right to sue does number survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit.
It is the joint and inseverable decree of redemption granted in favour of respondents, which was questioned in the appeal.
Article 120 of the third division of the Schedule to the Limitation Act, 1963 provides 90 days from the date of death as the period of limitation to have the legal representatives of the plaintiff appellant, defendant respondent, as the case may be, to be brought on record.
As far as may be the word plaintiff should be held to include an appellant, the word defendant a respondent, and the word suit an appeal.
This appeal arises from the judgment of the High Court of Bombay at Aurangabad in SA No.
Thus at the appellate stage also the legal representatives of the deceased respective appellants and the respondents should be substituted as the legal representatives of the respective appellants respondents.
Pending the appeal, appellant 1 died in July 1984 and appellant 5 died in the year 1987.
The High Court in second appeal, held that the mortgagee acknowledged the mortgage and that, therefore, limitation starts running from the date of the acknowledgement by the respondents predecessors in interest which would give fresh cause of action for filing a suit for redemption and possession.
Admittedly, numbersteps have been taken to bring the legal representatives of appellants 1 and 5 on record.
The trial companyrt dismissed the suit as being barred by limitation.
