ORDER : 1. Heard, Mr. R.N. Sahay, learned Senior counsel appearing for the appellants and Mr. S.N. Das, learned counsel appearing for the respondents. 2. This Second Appeal has been filed against the judgment dated 07.08.1991 and decree dated 14.08.1991 passed by learned 5th Additional District Judge, Giridih in Title Appeal No.55 of 1990, affirming the judgment and decree dated 12.04.1990 and 23.04.1990 respectively, passed by Munsif, Bermo at Tenughat in Title Suit No.47 of 1989. 3. It transpires that the suit was instituted for declaration of title over the suit land and for temporarily restraining defendant Nos.5 and 6-Central Coalfields Limited from paying compensation to defendant Nos. 1 to 4 for acquisition of lands of Khata No.42, Village-Jhunjhako, P.S.- Petarwar, District-Giridih. The suit was dismissed on contest vide judgment dated 12.04.1990 and the decree was prepared on 23.04.1990. Against the said judgment, Title Appeal was filed by the appellants/plaintiffs which was registered as Title Appeal No.55 of 1990 and was decided vide judgment dated 07.08.1991 passed by learned 5th Additional District Judge, Giridih. The Title Appeal was filed against the aforesaid judgment and the learned Appellate Court below while considering the petition for condonation of 52 days delay in filing the appeal, after considering the submissions of the parties, declined to condone the delay of 52 days in filing the appeal on the ground that it was a result of negligence, in action and the advice being not bona fide and with exercise of reasonable skill, and dismissed the appeal. 4. Aggrieved with the dismissal of the appeal vide judgment dated 07.08.1991 and the decree prepared on 14.08.1991, this Second Appeal was filed before this Court, which was admitted on 03.03.1994 by this Court on the following substantial questions of law:- i) “Whether the learned appellate court has erred in dismissing the appeal as barred by limitation?” (ii) “Whether on account of death of respondent No.2 in the lower appellate Court and steps for substitution having not been taken their, the appeal stood abated as a whole and the decree under appeal is a nullity?” 5. At the time of admitting of this Second Appeal, it was ordered that the petition at flag ‘2’ will be considered at the time of hearing of this Second Appeal. At the time of admitting of this Second Appeal, it was ordered that the petition at flag ‘2’ will be considered at the time of hearing of this Second Appeal. Subsequently, by an order dated 06.04.2004, the substitution petition was allowed with regard to respondent No.2 and on that day, respondent has got no objection in allowing the substitution petition. 6. With regard to first substantial questions of law, Mr. R.N. Sahay, learned Senior counsel for the appellants submits that there were only 52 days delay in filing the appeal and the learned Appellate Court below has not taken into consideration the fact that the litigants should not be allowed to be suffer for the conduct of the counsel of the litigants. He further submits that due to wrong advice the appeal was filed after limitation period and that is why the condonation petition was filed and the learned Appellate Court has not considered this aspect of the matter that it was due to mistake on the part of the counsel and in that view of the matter, the meritorious matter may not be thrown out at the very threshold and in this case the cause of justice has been defeated as only on the ground of 52 days delay in filing the appeal and the entire appeal has been dismissed. 7. To buttress his argument, Mr. Sahay, learned counsel appearing for the appellants has relied upon a judgment passed by the Hon’ble Patna High Court in the case of State of Bihar & Ors. (in 3005, 3006), Indra Nand Mishra (in 3007) & Ors. vs. Kameshwar Prasad Singh & Anr. (in 3005) Brij Bihari Prasad Singh (in 3006) State of Bihar & Ors. (in 3007) as reported in 2003(3) PLJR 81 (SC). Relevant Paragraph No. 11 of the said judgment is quoted herein below:- 11. Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. Relevant Paragraph No. 11 of the said judgment is quoted herein below:- 11. Power to condone the delay in approaching the court has been conferred upon the courts to enable them to do substantial justice to parties by disposing of matters on merits. This Court in Collector, Land Acquisition, Anantnag & Anr vs. Mst. Katiji & Ors. [ 1987 (2) SCR 387 ] held that the expression ‘sufficient cause’ employed by the legislature in the Limitation Act is adequately elastic to enable the courts to apply the law in a meaningful manner which subserves the ends of justice- that being the life purpose for the existence of the institution of courts. It was further observed that a liberal approach is adopted on principle as it is realized that: “1. Ordinarily a litigant does not stand to benefit of lodging an appeal late. 2. Refusing to condone delay can result in a meritorious matter being thrown out at the very threshold and cause of justice being defeated. As against this when delay is condoned the highest that can happen is that a cause would be decided on merits after hearing the parties. 3. ‘Every day’s delay must be explained does not mean that a pedantic approach should be made. Why not every hour’s delay, every second’s delay? The doctrine must be applied in a rational common sense pragmatic manner. 4. When substantial justice and technical considerations are pitted against each other, cause of substantial justice deserves to be preferred for the other side cannot claim to have vested right in justice being done because of a non-deliberate delay. 5. There is no presumption that, delay is occasioned deliberately, or on account of culpable negligence, or on account of mala fides. A litigant does not stand to benefit by resorting to delay. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so”. 8. By way of referring this judgment, Mr. In fact he runs a serious risk. 6. It must be grasped that judiciary is respected not on account of its power to legalize injustice on technical grounds but because it is capable of removing injustice and is expected to do so”. 8. By way of referring this judgment, Mr. Sahay, learned counsel submits that there is only 52 days delay in filing the appeal and sufficient cause had been made out before the court below for condoning the delay but the learned Appellate Court below has not condoned the delay of 52 days in filing the appeal only on the ground of technicalities. 9. Further, Mr. Sahay, learned counsel has relied upon a judgment passed by the Hon’ble Apex Court in the case of Udayan Chinubhai vs. R.C. Pali as reported in AIR 1977 (SC) 2319 . Relevant Paragraph Nos. 17, 23, 24, and 32 of the said judgment are quoted herein below:- “17. Relying on the new Sec. 12 (2) read with the Explanation of the 1963 Act, it is not possible to accept the submission that in computing the time requisite for obtaining the copy of a decree by an application for copy made after preparation of the decree the time that elapsed between the pronouncement of the judgment and the signing of the decree should be excluded. The Explanation does not countenance such a construction of Section 12 (2). It is to set at rest the difference of views amongst the High Courts that the Explanation was introduced and it is not permissible now to allow the same controversy to be perpetuated even after the 1963 Act. 23. When in the several clauses of Section 12, as mentioned above, certain days shall have to be excluded, what is not to be excluded, therefore, has also to be clearly explained. That is the raison d'etre for the Explanation newly introduced. In the entire scheme of Sec,. 12 dealing with exclusion of time for the purpose of computing the prescribed period of limitation, it is not possible to substitute the words "shall not be excluded" by reading the same as "shall be included" which will introduce an alien concept which is different from that disclosed in the setting of all the provisions. 12 dealing with exclusion of time for the purpose of computing the prescribed period of limitation, it is not possible to substitute the words "shall not be excluded" by reading the same as "shall be included" which will introduce an alien concept which is different from that disclosed in the setting of all the provisions. It will not be enough to say that the meaning of the words "shall not be excluded." is the same as "shall be included." The words "shall not be excluded" in the Explanation have to play an appropriate role in the setting and context of the expression "shall be excluded". used in all the preceding clauses in section 12. It is only preserving the words intact in the Explanation, its correct intent has to be ascertained. 24. Let us take an illustration. The period of limitation under the Code of Civil Procedure for an appeal to a High Court from any decree is 90 days from the date of the decree. The date of the decree is the date of the judgment under O. 20, R. 7, C.P.C. Ordinarily, therefore, time beings to run subject to Section 12 from the date of the judgment which is, for the particular purpose, the date of the decree, 90 days being the prescribed period of limitation, under Section 12 (1), the day from which such period has to be reckoned shall be excluded. Again under Section 12 (2), the time requisite for obtaining a certified copy of the decree shall be excluded. Under Section 12 (3), even the time requisite for obtaining a copy of the judgment on which the decree is founded shall also be excluded. Having thus in the above three clauses excluded a number of days in computing the prescribed period of 90 days, it was absolutely necessary to make it clear in the Explanation that the time taken by the court to prepare the decree before an application for a copy thereof is made shall not be excluded. If the Explanation were not in these terms the old controversy would have persisted about the time claimed by a person before making an application for a copy, whether it should be excluded or not, in view of the earlier conflict of decisions. If the Explanation were not in these terms the old controversy would have persisted about the time claimed by a person before making an application for a copy, whether it should be excluded or not, in view of the earlier conflict of decisions. It is because of this history of the judicial controversy that the Explanation was phrased in the way it has been done by Parliament, namely, that the time taken by the court to prepare the decree before an application thereof is made shall not be excluded. In other words, that period which may elapse in preparing the copy of the decree, prior to the making of an application for copy, shall not be excluded when excluding the time requisite for obtaining a copy while computing the period of limitation. But for this Explanation it could have been again argued that, that time also should be excluded as the entire period of time requisite for obtaining a copy in view of one line of earlier judicial decisions under the old Act. We are, therefore, clearly of opinion that the Law Commission had made a very salutary recommendation in order to make the position absolutely clear and to avoid any further controversy in the matter. 32. The correct legal positions, therefore, is that under. Sec. 2 (2) read with the Explanation a person cannot get exclusion of the period that elapsed between pronouncement of the judgment and the signing of the decree if he made the application for a copy only after preparation of the decree. We endorse the views on the line of the Bombay High Court in Sitaram Dada Sawant ( AIR 1968 Bom 204 ) (supra). With respect, the Full Bench decision in Subhas Ganpatrao Buty (AIR 1975 Bom 244) (FB) (supra) cannot be approved”. 10. By way of referring to the above judgments, Mr. Sahay, learned counsel submits that the judgment of learned Appellate Court below cannot be sustained in the eyes of law and is perverse. Since it was not decided on merit and only on the ground of condoning the delay of 52 days, the appeal has been dismissed. 11. Per contra, Mr. By way of referring to the above judgments, Mr. Sahay, learned counsel submits that the judgment of learned Appellate Court below cannot be sustained in the eyes of law and is perverse. Since it was not decided on merit and only on the ground of condoning the delay of 52 days, the appeal has been dismissed. 11. Per contra, Mr. Das, learned counsel appearing for the respondents submits that with regard to the first law point, there is no illegality in the judgment of the learned Appellate Court below as the appellants, herein, have not shown sufficient cause for condoning the delay. 12. With regard to second law point, Mr. Sahay, learned counsel for the appellants submits that for not substituting the legal heirs/successors of respondent No.2 and the entire appeal cannot be abated as a whole. He further submits that the another own brother of deceased respondent No.2 namely, Lakhan Singh was already made as respondent No.3 in the learned court below and that is why the appeal cannot be said to be abated as a whole. He further submits that it is well-settled proposition of law that if another person is having the inter se property which is on the record, the entire appeal cannot be abated. 13. To buttress his argument, Mr. Sahay, learned counsel appearing for the appellants has relied upon a Full Bench judgment passed by the Hon’ble Patna High Court in the case of Jagarnath Singh Vs. Singhasan Kuer as reported in 1984 (32) BLJR 297. Relevant Paragraph Nos. 17of the said judgment is quoted herein below:- “17. From the discussions of the several Supreme Court decisions made above, it emerges that when one or more heirs of the deceased or respondent are on record, then the estate is fully represented in the suit or the appeal, as the case may be, and the suit or the appeal will not abate for not bringing on record the other left out side. This will also include a case where some of the heirs at their own are brought on the record of the case. Such heirs, who applied for brining on record would represent the entire estate. This will also include a case where some of the heirs at their own are brought on the record of the case. Such heirs, who applied for brining on record would represent the entire estate. It may also include a case where through oversight or on account of such doubt as to who the heirs are, any heir is left out to be brought on record, still the estate of the deceased is fully represented by the heirs brought on record. The left out heirs may subsequently apply to be brought on record, but there will no abatement. The aforesaid propositions are, however, qualified by the following exceptions.- (i) Where the heirs on record collude with the plaintiffs or the appellants. (ii) Where a special case could have been put forward by the left out heirs and they did not get an opportunity to present such case in the proceeding and. (iii) Where there is an act of deliberate omission to include an heir while bringing the other heirs on record which may be said to be mala fide. It is further held that where one or more of the heirs of deceased defendant or respondent are on record, or they are already before the court in another capacity, but the left out heirs were not brought on the record, and no formal application was made showing them as heirs and legal representatives of the deceased, still the estate of the deceased would be represented by the heirs on record and the decision will bind not only the heirs on record, but the entire estate including those not brought o record unless the case comes under any of the exceptions mentioned above. However, it will be open to the heirs on record to point out that they do not represent the interest of other heirs and in that case it becomes the duty of the plaintiff or the appellant, as the case may be to make diligent and bona fide enquiry of bringing other heirs on record in accordance with law. But if no such objection is taken, then after the decision it will be deemed that there has been abandonment of the technical plea of abatement. But if no such objection is taken, then after the decision it will be deemed that there has been abandonment of the technical plea of abatement. It may be stated here that the decisions of our High Court which have been taken contrary view of those of the principles enumerated above are no longer good law in view of the recent pronouncement of Supreme Court in the decisions discussion above. Thus both the questions referred to the Full Bench have been answered accordingly.” 14. He submits that in view of the judgment rendered by the Full Bench the entire appeal cannot be abated. He further submits that the substitution petition was filed under Order XXII Rule 4 and 9 which was allowed by an order dated 06.04.2004 in this Second Appeal. He submits that as the substitution petition has been allowed this abatement, if any, shall be deemed to be set-aside as without setting-aside the abatement, of substitution petition cannot be allowed. 15. Per contra, Mr. Das, learned counsel appearing for the respondents submits that further point in the second question of law with regard to nullity of the judgment, as respondent No.2 died and was not substituted the judgment of the learned Trial Court is a nullity. 16. So far as the first question of law is concerned:- With regard to first question of law considering the submissions of the learned counsels appearing for the parties, this Court finds that the sufficient cause was made before the court below with regard to 52 days’ delay. It was pleaded in the learned court below that bona fide mistake of the fact sufficient cause within the meaning of Section 5 for condoning the delay and also it was pleaded that the delay of 52 days has occurred due to wrong advice of the learned counsel for the appellants and as such, the laches on the part of the litigant was not there. This Court further comes to a conclusion that refusing to condone delay amounts to refusal deciding of any case on its own merit and a substantial justice cannot be denied merely on the ground that appeal was filed after some delay. If there is non-deliberate delay and there is no presumption as to why the such delay cannot be condoned. This Court further comes to a conclusion that refusing to condone delay amounts to refusal deciding of any case on its own merit and a substantial justice cannot be denied merely on the ground that appeal was filed after some delay. If there is non-deliberate delay and there is no presumption as to why the such delay cannot be condoned. In view of the above judgments in the cases of State of Bihar & Ors (supra) and Udayan Chinubhai (supra), the judgment of the learned appellate court below cannot survive, which was rejected on the ground of delay of 52 days. Accordingly, the first question of law is answered. 17. The argument of Mr. Das, learned counsel with regard to nullity of the appeal is not sustainable, in view of the well-settled proposition of law laid down by the Full Bench of the Patna High Court in the case of Jagarnath Singh (supra). 18. So far as the second question of law is concerned:- This Court finds that one of the brothers namely, Lakhan Singh was already made respondent and in that view of the matter there will be no abatement where one or more heirs of the deceased respondent No.2 is on the record, or they are already before the court in another capacity still the estate of the deceased would be represented by the heirs on the record and the decision will govern not only the heirs on record but the entire estate including those brought on record. Thus, this Court has got no hesitation in saying that the appeal stood abated only against respondent No.2 for not substituting his legal heirs in the lower appellate court and thus, question of nullity does not arises in this case. Accordingly, the second law point is answered. 19. This Court comes to the conclusions that on the basis of the judgment rendered in the case of Jagarnath Singh (supra), by an order dated 06.04.2004, the substitution petition was already allowed in this Second Appeal by this Court, and thus, the abatement if any, was already set-aside. 20. As both the substantial questions of law have been answered in favour of the appellants and the impugned judgment and decree dated 07.08.1991 and 14.08.1991 passed by learned Additional District Judge cannot be sustained in the eyes of law and is set-aside. Accordingly, this Second Appeal stands allowed. 21. 20. As both the substantial questions of law have been answered in favour of the appellants and the impugned judgment and decree dated 07.08.1991 and 14.08.1991 passed by learned Additional District Judge cannot be sustained in the eyes of law and is set-aside. Accordingly, this Second Appeal stands allowed. 21. The appeal is remanded back to the learned appellate court below for deciding the same on its own merit. 22. Office is directed to send back the lower court record along with a judgment of this Second Appeal to the learned court below forthwith.