A.N. Venugopal Gowda, J.

1. This writ petition is by the defendants in O.S. 303/2011 on the file of the Additional Civil Judge (Jr.Dn.,), Bailhongal, sitting at Kittur. Suit for passing a decree of declaration and for grant of consequential reliefs was instituted on 16.11.2011. Written statement contesting the suit was filed on 20.1.2012. Smt. Gangawwa Chandrashekhar Hiremath/sole plaintiff, died on 16.10.2012. In that behalf, on 31.1.2013, respondents filed 2 applications: (i) to set aside the abatement of the suit; and (ii) to permit them to come on record as the L.Rs. of the deceased. The applications have been allowed.

2. Mr. Sangram S. Kulkarni, learned counsel for the petitioners, contended that the L.Rs. of the deceased plaintiff having not filed the application to come on record within 90 days, they were required to file separate application for condonation of delay, along with the applications under O. 22 Rule 3 and O. 22 Rule 9 CPC. By placing reliance on the decision in the case of Sri T. Subba Rao v. Sri T. Narasimha Rao, ILR 2008 Karnataka 2768, he contended that the Trial Court has committed procedural impropriety and illegality in allowing the said applications.

3. Rule 3 of O. 22 CPC prescribes the procedure in case of death of one of the several plaintiffs or of sole plaintiff and the right to sue survives. The Court, on an application made in that behalf, shall cause the legal representative of the deceased plaintiff to be made a party and shall proceed with the suit. Sub-rule (2) of R.3 makes it clear that, where, within the time limited by law, no application is made under sub-rule (1), the suit shall abate, so far as the deceased plaintiff is concerned, and, on the application of the defendant, the Court may award to him the costs, which he may have incurred in defending the suit, to be recovered from the estate of the deceased plaintiff.

4. Under Article 120 of the Schedule to the Limitation Act, 1963 ("the Act" for short) the period of limitation to come on record of the suit by the legal representative/s of the deceased plaintiff is 90 days from the date of death of the plaintiff. Article 121 provides that, for an application under the Code, for an order to set aside the abatement, the period of limitation is 60 days from the date of abatement.

5. It is not in dispute that the sole plaintiff died on 16.10.2012. The application was required to be filed within 90 days from that date. Since such an application was not filed, the suit abated on 15.1.2013. An application to set aside the abatement along with another application to come on record as the legal representatives of the deceased was filed on 31.1.2013, which was within 60 days of the date, the suit abated. In the circumstances, the only question for consideration is, whether a separate application under S. 5 of the Act, seeking condonation of delay also should have been filed along with the applications under O. 22 R. 3 and O. 22 R. 9 CPC?

6. In the case of Alphonso Nazareth v. Xavier Dias and others AIR 1971 Mysore 79, respondent No. 1 before the Civil Judge, died on 7.2.1967 and that the appellant filed the applications on 5.6.1967, within 150 days from the date of death. However, the Civil Judge dismissed the application filed under S. 5 of the Limitation Act, holding that there was no sufficient ground for condonation of delay and further held that the application for setting aside the abatement of the appeal and the application to bring on record the legal representative of the deceased do not survive, as the appeal had already abated. When the order was challenged in a Miscellaneous First Appeal by contending that the Court below fell into an error in thinking that an application under S.5 of the Act was necessary for condoning the delay in making the application for setting aside the abatement, it has been held as follows:

"35. I think Mr. Holla is right in contending that the learned Civil Judge fell into an error by overlooking that the app