S. PARVATHA RAO, J.

( 1 ) THE petitioner in mis Civil Revision Petition questions the order of the learned Subordinate Judge at Vizianagaram in I. A. No. 1087 of 1987 in O. S. No. 129 of 1985 allowing the said I. A. presented by the first respondent herein under order 1 Rule 10 of the Code of Civil Procedure for transposing him as the second plaintiff in the said suit and permitting him to continue that suit.

( 2 ) THE facts are in a brief compass. The said suit- O. S,no. 129 of 1985 - is for partition of the plaint scheduled welling house. Defendants 1 to 4 in the said suit are the brothers of the plaintiff and defendants 5 to 7 therein are his sisters. The plaintiff died on 11-4-1987. No application was filed to bring his legal representatives on record under Order 22 Rule 3 of the Code of Civil Procedure and, therefore, the suit abated so far as the plaintiff was concerned. On 26-8-1987 the first respondent herein, who is the second defendant in the suit, filed the present application - I. A. No. 1087 of 1987. It is his case that the plaint schedule property is an ancesteral family dwelling house and that he and his brothers i. e. , the deceased plaintiff, the first defendant and defendants 3 and 4 were each entitled to 1/5th share therein. According to him the legal representatives of the plaintiff joined hands with the 4th defendant in the suit i. e. , the petitioner herein, and are not inclined to pursue the suit. His contention is that the suit being a partition suit, though he is shown as defendant in the array of parties, he as entitled to continue the suit by transposing himself as plaintiff. Only the petitioner herein opposed the said application denying that the legal representatives of the deceased sole plaintiff joined hands with him and were not inclined to pursue the suit, and contending that as the sole plaintiff died on 11-4-1987 and no application for bringing on record his legal representatives was filed, the suit abated completely land that it was np longer in existence in the eye of law and, therefore, the present I. A had no legs to stand.

( 3 ) BEFORE the learned Subordinate Judge, on behalf of the petitioner here in reliance was placed on a Division Bench decision of this Court in Mir Sardar Ali khan vs. Special Deputy Collector, where in it has been held that the power under sub-rule (2) of Rule 10 in Order 1 of the Code of Civil Procedure can be exercised only when the proceedings are alive and still pending and not when they are already disposed of. On behalf of the first respondent here in it was contended that a suit for partition never abates by death of a co-sharer even if the legal representatives were not brought on record and that, therefore, it could not be said that the suit abated totally and reliance was placed on the judgment of the punjab High Court in jagat Dhish Bhargava vs. Shri Jawaharlal Bhargava and also on the judgment of this Court in Kotamida Ramayya vs. Chinna Chennarayana. The learned Subordinate Judge has taken the view that it cannot be said that the suit was not alive and that in the interests of justice and the peculiar circumstances of the case the first respondent herein can be transposed as the second plaintiff in the suit.

( 4 ) THE learned Counsel for the petitioner contends that as no application for bringing on record the legal representatives of the deceased plaintiff was made within time the suit - O. S. No. 129 of 1985 - abated under sub-rule 2 of Rule 3 of order 22 of the Code of Civil Procedure and that after the suit abated there was no suit in which transposition of a defendant as plaintiff could be made. Relying on the judgment of the Supreme Court in Madan Naik vs. Hansubala Devi, he submits that abatement under Rules 3 and 4 of Order 22 takes place by operation of law and no specific order is necessary. He further submits that an application under Order 1 Rule 10 (2) can be made only in pending proceedings and that when a suit abates it cannot be treated a

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