Avadh Behari Rohtagi, J.
(1) In this appeal Balbir Singh, respondent No. 3, died sometime in October, 1974. The appellant was ignorant of his deat. When the appeal came for hearing on December 8,l977, it was brought to the notice of the appellants counsel that Balbir Singh Had, died as was apparent from the report of the postman dated August 2, 1977, on the notice sent by registered post to Balbir Singh for the healing of the. case.
(2) The appellant made enquiries about the date of death of Balbir Singh and the names of his legal representatives. He could not get this information earlier than 22nd December, 1977, when he made two applications. One is under O. 22 rule 4, Code of Civil Procedure and the other is under section 5 of the Limitation Act. Subsequently on May 2, 1978, he moved a third application under Order 22 rule 9(2), Code of Civil Procedure for setting aside the abatement.
(3) We think we ought to allow all the three applications. The appellant 'was unaware of Balbir Singh's death. It came to his knowledge on December 8, 1977, that Balbir. Singh was dead. He then took steps to find out the date of death. Enquiries revealed that Balbir Singh had died sometime in October, 1974. On December 22. 1977, the appellant moved the application.. for the substitution of the names of the legal representatives.
(4) By the Code of Civil Procedure (Amendment) Act, 1976, (Act 104 of 1976) sub-rule (5) of rule 4 of O.22 has been introduced in the Code with effect from February 1, 1977. Sub-rule (5) reads :
'(5) Where- (a) the plaintiff was ignorant of the death Of a defendant, and could not, for that reason, make an application for the substitution of the legal representatives of the defendant under this rule within the period specified in the Limitation Act, 1963, and the suit has. in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified thereforee in the Limitation Act, 1963, for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act. The Court shall, in considering the application under the said section 5. have due regard to the fact of such ignorance, if proved.'
Order 22 applies to appeals. (See rule Ii of Order 22).
(5) We think this amendment comes to the aid of the appellant. He was ignorant of the death of the respondent Balbir Singh and could not for that reason make the application for substitution of his legal representatives within the period of limitation and in consequence the appeal had abated. After the expiry of the period of limitation he has moved for setting aside the abatement 'on the ground that he had. by reason of such ignorance, sufficient cause for not making the application within the period specified' in the Limitation Act. The upshot is that if ignorance of death is pleaded as a sufficient cause the court shall, in considering the application under section 5, Limitation Act 'have due regard to the fact of such ignorance, if proved'. The words 'have due regard' mean that the court shall take the same into 'consideration in determining the question. When the legislature uses this expression it means that the facts, which the courts may take cognizance of are to be 'a guide and not a fetter', to use an expression of Farewell L.J. (See Perry v. Wright (1908)1 K. B. 441.
(6) In each case it has to be proved that ignorance was genuine and not feigned. If the plaintiff feigns an excuse of ignorance it cannot be held to be a sufficient cause. An excuse of ignorance, if no more than a false show, a sham appearance or a mere pretence, will not be viewed with indulgent eyes.
(7) Now the fact of ignorance is proved on the record of this case. There is intrinsic evidence. The knowledge of death which dispelled ignorance came to the appellant on December 8, 1977, at the hearing of the appeal. He had no knowledge of Balbir Singh's death earlier. If ignorance is proved, as it has been proved in this case, the court is required to 'have due regard to the fact of such ignorance'. Having regard to the fact of ignorance we see no reason why we should not allow the application.
(8) The recent amendment shows a marked change. Ignorance is now an excuse. If proved ignorance of death can be a sufficient cause for condensation of delay. By one stroke the legislature is making a change in the law of limitation. There is a shift in favor of ignorance. Probably the old view on the subject was considered to be harsh and unjust. Fashions in parliamentary draftsmanship and the attitude of the legislature towards innovation in established law are not unchanging. The new attitude of an indulgent legislature has brought about a change in the law after seventy years of experience gained in the working of the Code of Civil Procedure (Act V of 1908).
(9) The next question is : Will the amendment which came into force on February 1, 1977, apply to this case where death took place in October, 1974, and as a consequence whereof the appeal had abated To this question an answer is provided by section 97(2) (r) of the Amendment Act, 1976. That provision reads :
'(r) the provisions of rule 4 of the Order Xxii of the First Schedule, as substituted by section 73 of this Act, shall not apply to any order of abatement made before the commencement of the said section 73;'
(10) This means that if the 'order of abatement' has been made before February 1, 1977, the new sub-rule (5) cannot be availed of. Then the fact of ignorance of death without more cannot be pleaded as a sufficient cause.
(11) In the present case there is no order of abatement. The appellant is, thereforee, entitled to call new sub-rule (5) of O.22 rule 4 to his aid.
(12) Counsel for the legal representatives of Balbir Singh deceased referred us to Union of India v. Ram Charan. : 3SCR467 . He argued that the Supreme Court has ruled that :
'the mere statement that the appellant was ignorant of the death of the respondent cannot be sufficient and that it is for the appellant, in the first instance, to allege 'why he did not know of the death of the respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the respondent might have died.' (p. 220)
(13) Counsel submitted that we should not condone the delay of more than three years as the appellant has stated no reasons which led to his not knowing of the death of respondent Balbir Singh within reasonable time and has failed to establish those reasons to the satisfaction of the court. We do not agree. It must not be forgotten that the law has been altered by the legislature and the ignorance of death, if proved, is now 'a sufficient cause' for not making the application under O.22 rule 4 within the period specified in the Limitation Act, Courts are required to 'have due regard to the fact of such ignorance, if proved'. It is in the light of the amendment that a pre-amendment ruling has to be read and its ratio understood. We cannot blindly follow the ruling and refuse to recognise the effect of amendment. Subsection (3) of section 97 of the Amendment Act, 1976 is a clear pointer in this direction. It says that save as provided by sub-section (2) the provisions of the Code of Civil Procedure (Act V of 1908) as amended by the Amendment Act of 1976 shall apply to all suits, appeals etc. pending at the date of the Amendment Act or filed subsequent there to.
(14) For these reasons we allow the applications. We set aside the abatement and order that the names of legal representatives be substituted in place of deceased respondent No. 3 and cause title of the appeal amended accordingly. We make no order as to costs,