JUDGMENT
Radha Mohan Prasad, J.
1. This first appeal arises out of judgment and decree passed in Title Suit No. 589 of 1974 by learned Subordinate Judge, Gopalganj in which plaintiff-Respondents No. 1 & 2 claimed for carving out their l/4th share in the property scheduled at the foot of the plaint spread in three schedules. The appellants and Respondents 3 to 44 were the defendants.
2. In this appeal, upon the death of appellant No. 2 and Respondent Nos. 10, 12, 17, 26, 27 and 28 a composite petition (Flag O) under Order XXII, Rules 3/4 of the Code of Civil Procedure and Section 5 of the Limitation Act was filed seeking substitution of their legal heirs after condoning the delay, if any, and setting aside the abatement. The said petition came up for orders’ for removing the defects and on undertaking of the learned Counsel, the Court vide order dated 6-4-1995 granted two weeks peremptory time to remove the defect, otherwise it was directed that the said petition shall stand rejected without further reference to a Bench. Later on 2-3-1998 the Registrar-General noted in his order that the appeal abated as against the heirs vide deceased appellant No. 2 and Respondent Nos. 10, 12, 17, 26, 27 and 28. In the meanwhile, it appears that appellant No. 1 and Respondent No. 1 also died on 19-1-1995 and 11-12-1994 respectively and a petition at Flag ‘J’ under Order XXII, Rules 3 / 4 of the Code of Civil Procedure and Section 5 of the Limitation Act was filed on 19-4-1995 seeking substitution of their heirs and legal representatives after condoning the delay, if any, and set aside the abatement, if any.
3. The office vide its notes dated 9-3-1998 reported that the appeal has abated as against the heirs vide deceased appellant No. 2 and respondent Nos. 10, 12, 17, 26, 27 and 28 and under the said circumstances placed the matter before the Bench for consideration and order as to whether the whole appeal become incompetent. It was also reported that the appeal arises out of a suit for partition. On 10-3-1998 when the matter was listed under heading ‘for orders’ none appeared and this Court directed for its listing again on 11-3-1998. After hearing learned Counsel for the appellants, who failed to point out that even in the absence of aforementioned appellant No. 2 and respondents No. 10, 12, 17, 26, 27 and 28, the appeal can proceed, this Court vide order dated 11-3-1998 held that the appeal has become incompetent and cannot proceed and it was accordingly dismissed. Thereafter, a petition under Order XXII Rules 4 & 9 of the Code of Civil Procedure read with Section 151, C.P.C. and Section 5 of the Limitation Act at Flag ’67’ was filed on behalf of the appellants to set aside the abatement and restore the petition at Flag ‘G’ and consequently, the appeal at its original position and allow the petitions at Flags ‘G’ and ‘J’. A counter-affidavit to the said petition was filed on 7-5-1999 on behalf of Respondent No. 8. On 1-7-1999 another petition under Order XXII, Rules 3/4 and Section 151 of the Code of Civil Procedure read with Section 5 of the Limitation Act was filed on behalf of the appellants bringing on record the facts that both the appellants died and contesting Respondents 1 & 2 also died, and that their legal representatives were already substituted and the substitution petition are already on record. Besides the aforesaid contesting parties, the names of other Respondents are also mentioned in the said petition in paragraph 4. It is further stated that all the aforesaid Respondents are neither interested in the appeal nor they were residing at their villages and were residing somewhere else in other State in connection with their livelihood. Hence, the appellants could not know about the date of their death and the substitution petition could not be filed properly within time. Even today the appellants are trying to get the knowledge of dates of death as well as the legal representatives and theirs of the deceased. Under the circumstances, a prayer has been made to allow the said application and expunge the names of the deceased-appellants/Respondents and their legal heirs be directed to be substituted.
4. This Court fails to appreciate the nature of the prayer made in the said petition. However, the question regarding consideration of the said prayer made in the said petition would only arise if the appeal is restored back to its file for disposal on Merits. A rejoinder to the counter-affidavit on behalf of Respondent No. 8 was filed.
5. Learned Counsel for the Respondent No. 8 pointed out in paragraph 6 of the the counter-affidavit that Respondent No. 2 died on 30th April. 1991 and substitution petition was filed on 7-11-1991, which was also dismissed in default for non-appearance and hence, the appeal abated against him long back and no further steps has been taken up-till-now as a result of which the whole appeal has abated on 30th April, 1991. Learned Counsel for the appellants, however, submitted that an application under Order XXII, Rule 4, C.P.C. was filed in this Court on 7-10-1991 (Flag I) seeking substitution of the legal heirs of the deceased-Respondent No. 2, but no order could be passed as in the meanwhile in view of the Bench order dated 6-4-1995, the Registrar-General on 2-31998 noted that the appeal had abated as against the heirs vide deceased appellant No. 2 and respondent Nos. 10, 12, 17, 26, 27, and 28. It is true that on the said date the Registrar-General had allowed two weeks’ final time to serve copy of the petition at Flags T and ‘J’ on the other side and to file receipt thereof, but since none had appeared no further order was passed on the said petition at Flag T. Learned Counsel for the appellant appears to be correct. After the said note of the Registrar-General, the matter relating to competency of the whole appeal itself was placed and considered.
6. Learned Counsel for the appellants has contended that the Courts have always shown leniency in the matter of substitution in order to do justice and, thus, should consider to set aside the abatement and restore the petition at Flag ‘G’ and consequently, the appeal at its original position by allowing the petition at Flags ‘G’ & ‘J’.
7. I am unable to appreciate as to how such a petition at Flag ’67’ is maintainable, when, in fact, the appeal itself does not survive after the order dated 1 l-3-98 was passed holding that the appeal has become incompetent and cannot proceed and accordingly dismissed it. Learned Counsel for the Respondent has rightly contended that none of the two petitions placed at Flag ‘J’ or ’67’ are entertainable in view of the settled law that no leave to continue the appeal can be given after the appeal has terminated by virtue of its abatement. The petition at Flag ’67’ in which the prayer has been made to restore the petition at Flag ‘G’ and consequently, the appeal at its original position and allow the petition at Flags ‘G’ & ‘J’ is completely misconceived petition. The only remedy, if any, in the facts and circumstances of the present case was to move in appeal against the order dated 11-3-1998 dismissing the appeal being incompetent in absence of appellant. No. 2 and Respondent Nos. 10, 12, 17, 26, 27 and 28. In support of this, he placed reliance on the decisions of this Court in the case of Hemayat Ali and Ors. v. Nagina Chamar and Ors. reported in 1977 B.B.C.J. 496, Puranmal Bajoria v. Nagarmal and Ors. and Ram Das Chaurasia v. Jagdish Chaurasia and Ors. reported in 1998 (1) B.L.J. 802.
8. This Court finds force in the submission of the learned Counsel for the Respondents. In Puranmal’s case this Court held that an order of abatement under Order XXII can be passed either under Order XXII, Rule 3 if within the time-limited by law no application is made to substitute the legal representative of the deceased-plaintiff as required by sub-rule (1) of Rule 3 Order XXII or under sub-rule (3) of Rule 4 of Order XXII where within the time-limited by law no application is made to substitute the legal representative of the deceased-defendant as required by sub-rule (1) or Rule 4 of Order XXII. These are the only two circumstances in which abatement takes place under Order XXII. Application under Clause (2) of Rule 9 to set aside the abatement can, therefore, be made only in a cases where the abatement takes place in consequence of an application not having been made within the time-limited by law to bring in the legal representatives. No application to set aside the abatement would lie where suit has abated owing to the cause of action not surviving at all for some reason, in such a case there is no question of plaintiff having been prevented by any sufficient cause from continuing the suit.
9. The effect of abatement, if it is not set aside under Order XXII, Rule 9 is virtually a decree and the order of abatment has been considered to determine the rights between the parties and operate a decree in favour of the defendants, and it becomes final as a result of abatement. In the case of Hemayat Ali v. Nagina Chamar (supra), the Division Bench found force in the submission that if the abatement had not been set aside under Order XXII, Rule 9 the effect of abatement was virtually a decree.
10 It was also submitted by the learned Counsel for the petitioner-appellants that even in absence of those Respondents who did not choose to contest, the appeal can survive. In support of this he placed reliance on the decision of the Supreme Court, in the case of Chhaganlal Keshavlal Mehta v. Patel Narandas Haribhai, . This Court fails to appreciate as to how the said proposition is of any help to the facts of the present case. Firstly, there is no foundational fact in regard to the said proposition, secondly the said question is no more open for being considered in the present application on the face of the order passed on 11-3-1998, when the learned Counsel for the appellants failed to point out that in absence of appellant No. 2 and respondent Nos. 10, 12, 17, 26, 27, and 28 the appeal can proceed and the appeal was, thus, dismissed being incompetent, and the effect of the said order was that of a decree, which became final and the provisions of the Order XXII, Rule 9 is not attracted.
11. Thus, this Court does not find any merit in the said two petitions at Flag ‘J’ and ’67’ and the same are accordingly rejected.