( 1 ) THIS Civil Revision Petition is directed against an Order dated 6-9-2001 passed in i. A. No. 1174 of 1999 in O. S. No. 34 of 1999 on the file of the Court of Principal Senior civil Judge at Warangal.

( 2 ) THE said application filed under order XXII Rule 9 of the Code of Civil procedure to set aside the abatement of the suit against the 1st defendant was dismissed as barred by limitation along with i. A. No. 38 of 2000, which was filed for impleading the legal representatives of the deceased 1st defendant. The petitioner herein-Nethra Chits (P) Limited-is the plaintiff and applicant in the above suit and interlocutory Applications respectively. He laid the suit for recovery of certain money against defendants 1 to 4. The notice sent to the 1st defendant-B. Ramachandra Reddy - was returned unserved on 26-3-1999 with an endorsement that the party died. However, appearance was filed on behalf of defendants 2 to 4 and the case was posted for taking steps for adding legal representatives of the deceased 1st defendant and for filing the written statement of defendants 2 to 4. Thereafter, defendants 2 to 4 filed their written statement.

( 3 ) IN the affidavit filed in support of l. A. No. 1174 of 1999, the petitioner-plaintiff has stated that he had filed the suit for recovery of money against the respondents/ defendants and on 25-6-1999 when the suit was posted for written statement of defendants 2 to 4, it was learnt that summons sent to defendant No. 1 were returned on the ground that he died on 5-5-1998 leaving behind him, his widow, two sons and a daughter. Thus, he came to know about the death of the 1st defendant only on 25-6-1999 and as such, prayed for setting aside the abatement against the 1st defendant and also to implead the legal representatives of the deceased-1st defendant whose description is given in the petition as defendants 5 to 8 in the suit, in the interest of justice. Except this, no other reason was furnished.

( 4 ) A counter-affidavit has been filed on behalf of the proposed respondents wherein it was stated that the suit was filed on 1 -12-1998 and the petitioner-plaintiff failed to file the application within 60 days from the date of abatement as per Article 121 of the limitation Act, 1963. The admitted facts disentitle the petitioner-plaintiff to seek the relief of setting aside the abatement of the suit, without the petition for condonation of delay. The same counter is also filed in I. A. No. 38 of 2000. Thus, both the I. As, were disposed of by common order.

( 5 ) IT was noticed by the Court below that the 1st defendant died on 5-5-1998 much before the filing of the suit on 15-2-1999. Thus, the suit itself was laid against a dead person. The summons were returned on 26-3-1999 stating that the 1st defendant died. Thereafter, the suit was posted for taking steps for adding the legal representatives of the 1st defendant. The petitioner filed the I. As. on 14-10-1999 stating that there is no delay in filing the petitions, as it came to know the death of the 1st defendant only on 25-6-1999 and as such, the petitions are within limitation. However, the Office of the lower Court had returned the said I. As. for filing a petition under Section 5 of the Limitation Act, 1963. The same was represented by the petitioner stating that as per the Limitation Act, 1963, the petitioners are within time; hence, the petition under Section 5 of the Limitation Act is not necessary. After examining Order XXII rules 4 and 9 of C. P. C. , the Court below held that the petitioner failed to file the petition to set aside abatement within 150 days of the death of the 1st defendant and had also not filed the petition under Sec. 5 of the Limitation Act and, therefore, dismissed the applications as barred by limitation. Aggrieved by the said order, the present Civil revision Petition is filed.

( 6 ) FOR proper appreciation of the controversy involved in this Ms, it is necessary to examine the provisions under w