1. This is an application for substitution of the legal representatives in place of the deceased appellant 4 who is said to have died on 15-8-1953. The application for substitution was filed in this Court on 7-12-1953. It was contended on behalf of the petitioners that there had been a preliminary decree In a partition suit against which an appeal had been filed in this Court which was numbered as First Appeal No. 383 of 1947.

During the pendency of the appeal appellant 4, Awadhesh Gorain, died on 15-8-1953, and the present substitution was necessary to enable the appellants to prosecute the aforesaid first appeal. Mr. Prasad contended that the provisions of Rules 3 and 4 of Order 22, Civil P. C. had no application; on the contrary, it was Rule 10 of the said Order which applied. He relied upon two decisions of this Court -- Babuie Shanti - Devi v Khodai Prasad Singh, 1942 Pat 340 (AIR V 29) (A), and -- Raghunandan Sahu V/s. Badri Pandey, 1945 Pat 380 (AIR V 32) (B). He urged that in view of this the question of abatement did not arise.

Mr. Gaurishanker Prasad, on the other hand, has contended that Rule 10 of Order 22 has no applica tion and the application for substitution