NISHITA MHATRE, J.

( 1 ) THIS Appeal from Order has been filed against the judgment of the Additional District Judge, Kolhapur holding that the appellant Jaipal is not the legal representative of the deceased Amakka Shiva Narandekar and dismissing the suit on that ground.

( 2 ) THE deceased Amakka Shiva Narandekar had filed a suit for partition and separate possession of the 1/2 share in the suit property consisting of agricultural land. This suit was filed on 26. 7. 1976. On 20. 8. 1979, amakka executed a will in favour of Jaipal. On 8. 2. 1982, the suit was dismissed by the trial Court. An appeal was preferred by Amakka on 11. 3. 1982. Amakka died on 19. 6. 1987 during the pendency of the appeal. Jaipal filed an application before the appellate Court for being substituted in place of the deceased Amakka as appellant as he was the legal representative of the deceased. The Respondent filed his say to this application. On 28. 7. 1987, the appellate Court referred the will of Amakka to the trial Judge far an enquiry as to whether Jaipal was the legal representative of Amakka in order to continue in the proceedings before the appellate Court. The trial Court held on 21. 10. 1988 that Jaipal Tatoba Patil was not the legal representative of the deceased Amakka. , Thus, the findings were returned by the trial Court to the appellate Court, The appellate Court by the impugned judgment dated 18. 4. 1998 held that the appeal had abated in view of the fact that Jaipal was not the legal representative of Amakka.

( 3 ) A preliminary objection has been raised by mr. Kumbhakoni, appearing for the Respondent, regarding the maintainability of this Appeal frim Order. He submits that under Order 43 Rule 1 (k) of the Civil procedure Code, an order passed under Rule 9 of Order 22 of the Civil Procedure Code refusing to set aside the abatement or dismissal of the suit is an appealable order. Hesubmits that the impugned order only decides that the legal representative of the deceased Amakka is not Jaipal and that, therefore, the suit had abated. He submits that the impugned order is not one which has been passed under Rule 9 of Order 22 of the Civil procedure Code and therefore, it is not appealable. According to the learned Advocate, this order has been passed under Rule 5 of Order 22 of the CPC under which the appellate Court had referred the question as to who was the legal heir of Amakka to the trial Court. After determination by the trial Court that Jaipal was not the legal heir, the Appellate Court has merely declared that jaipal was. not the legal heir and, therefore, the suit had abated. He places reliance on the judgment of the apex Court in the case of Mahendra Kumar v/s. Lalchsnd and Anr. , (2001) 2 SCC 619 to submit that where the determination of the question as to who is the legal representative is in process? there is no abatement of the original proceedings. It is only when the trial court or the appellate Court determines who is the legal representative in order to prosecute the appeal that the question of abatement arises.

( 4 ) MS. BHANAGE, appearing for the appellant, submits that the order impugned has been passed under Order 22 rule 9 since it has been declared that the suit has abated. According to her, when there is such a declaration of the abatement of a suit, it is Order 22 rule 9 of CPC which is set in operation and 5 therefore, the appeal is maintainable. According to the learned advocate Order 22 Rule 5 only prescribes the procedure to be adopted in case of death of a party. She relies on the judgment of the Apex Court in the case of Nadan nsik v/s. Mst. Hansubala Devi and Ors. , AIR 1983 SC 676 in support of her contention. According to her, the abatement takes place on its own by passage of time and no specific order is necessary under Order 22 Rule 9 of civil Procedure Code for setting aside the abatement. She also relies on the judgment of the Punjab and Haryana high Court in the case of Harbans Lal and ors.