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Regular Second Appeal No.127 of 1966, decided on 22nd January, 1987.

-----O. XXII, R.4--Limitation Act. (IX of 1908), Arts.177 & 181-- Impleading of legal representatives of deceased respondent- Limitation- -Period of lamination for impleading legal representatives of decease' respondent was 90 days from death of respondent; application for impleading legal representatives of deceased respondent filed after more 'than 13 years from death of respondent without giving any explanation for such delay--Such applications, held, was liable to be dismissed being hopelessly barred by time as legal representatives could be impleaded within three years of accrual of right to apply- Failure to implead heirs of appellant within time would result in abatement of appeal.

Ghulam Rasul v. Ramun Lal and others A I R 1934 Lah. 190 ref.

Shah Muhammad and others v. Muhammad Bakhsh P L D 1972 S C 321 rel.

Muhammad Aslam Chatha for Appellant.

Muhammad Hussain Awan for Respondents.

Date of hearing: 29th April, 1987

This Second Appeal by the defendants arises out of a declaratory decree passed by the trial Court on 21-6-1964 in favour of the respondent-plaintiff with regard to 28 kanals of agricultural land situated in Chak Dillu, Tehsil Gujrat which has been confirmed by a learned Additional District Judge on 1-12-1964.

2. Imam Din respondent No.3 and Hakam Khan appellant No.2 herein have died and there are three Civil Miscellaneous Applications bearing Nos.2851/C, 6996/C and 6997/C, all of the year 1980 filed with regard to their deaths. The former was filed by respondents Nos.l and 2 on 28-4-1980 claiming that the R.S.A. had abated on account of the death of Imam Din, respondent No.3 taken place on 3-2-1967 and the failure of appellant's to implead his legal representatives within the time limited by law. The other two applications were filed by the remaining three appellants on 23-11-1980. The claim to C.M. No.6996/C of 1980 is that before his death, the deceased Imam Din had transferred 1/2 share of the land in suit to the two applicants Muhammad Sharif and Muhammad Bashir by means of a consent decree passed on 11-1-1967, therefore, they may be impleaded as his assignees under Order XXII rule 10 of the C.P.C. The third application bearing C.M.No.6997/C of 1980 seeks impalement of the legal representatives of Hakim Khan, appellant No.2 who is stated to have died on 1-7-1975.

3. The prayer for impleadment made in C.M.No.6996/C of 1980 is opposed on the authority of Ghulam Rasul v. Ramun Lai and others A I R 1934 Lah. 190. (D.B.) Since this application has been filed more than 13 years after the death of Imam Din respondent No.3 and Article 177 of the Limitation Act provides a limitation of ninety days from the date of death of the respondent for impleadment of his legal heirs, therefore, there is no reason to grant leave to them on account of the alleged title acquired pendente lite. Even otherwise, this application is hopelessly time-barred by more than a decade and neither has any explanation been furnished for this inordinate delay nor has even a prayer for condonation thereof been made. C.M. No.6996/C of 1980 is accordingly dismissed.

4. So far as C.M.No.6997/C of 1980 is concerned, the death of Hakim Khan appellant No.2 is admitted to have taken place on 1-7-1975, which is a date after the enforcement of the Law Reforms Ordinance of 1972. Even though abatement of appeal may not ensure upon failure to implead his legal heirs yet, since this application seeks the impleadment of certain persons in his stead for the purposes of the completion of the record, therefore, it would fall at least under the residuary Article 181 of the Limitation Act which provides a period of three years from the accrual of right to apply and is barred by time thereunder. It is also accordingly dismissed.

5. As regards the prayer made .in the third application C.M.No.2851/C of 1980 in the consequence of the death of Imam Din, respondent No.3 and failure to implead his legal heirs within time, this R.S.A. will be deemed to have abated in the first instance as against him alone but since his share in the land in suit as also in the decree passed in his favour is not 'ascertainable either from the plaint or from the decree itself, therefore, as has been laid down in Shah Muhammad and others v. Muhammad Bakhsh P L D 1972- S C 321, the entire R.S.A. has been rendered incapable of being proceeded with on account for conflict of decrees likely to follow. The R.S.A. is liable to be hence dismissed. The same is accordingly dismissed with costs.

H.B.T./S-39/L Appeal dismissed.

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