Rule 3, and not Rule 10 of Order 22, applies to a case, where, as here, after the preliminary decree, but, before the final decree, and, during the pendency of an appeal from the preliminary decree, one of the appellants dies.

Raj Kishore Prasad, J.

1. The present appeal from the preliminary decree for partition is by defendants 1 to 35(a), who were defendants first party to the suit.

2. The appeal arises out of a suit brought by the plaintiffs respondents for declaration of their title to and confirmation of possession over some and recovery of possession of the remaining disputed lands and for partition. The suit has been decreed, and, the plaintiffs have been granted a decree for possession, and, a preliminary decree for partition has also been passed.

3. In the suit, the competition was between two settlees. The plaintiffs claimed settlement of the disputed lands from 15 annas landlords, whereas, the defendants-appellants claimed settlement of the self same lands from the 16 annas landlords.

4. During the pendency of the present appeal in this Court, appellant 13, Rambirit Rai, who was defendant 10 in the Court below, died. On 23-7-58, the respondents filed an application stating that appellant 13 died on 22-1-57, leaving behind three sons and three grandsons from a deceased sou, who were all members of his joint family, but, no substitution petition had been filed for substituting the legal representatives of the deceased appellant, as also of certain respondents, whose deaths were also mentioned in the Said petition. On the same day, that is, on 23-7-58, on behalf of the appellants, an application was made under Sec. 5 of the Limitation Act to condone the delay in filing their substitution petition in respect of the deaths of respondents 1, 9 and 19, who died long ago.

5. On 31-7-58, the appellants made an application under Rule 3, Order 22, of the C. P. C., 1908, praying that as appellant 13 Rambirit Rai, had died on 16-6-58, leaving behind three sons and three grandsons from a deceased son, who are not on the record, they should be substituted in his place. The application was sworn by Chandradip Rai, one of the three grandsons sought to be substituted in place of their deceased grand-father, appellant 13. To this application, the respondents, on 4-1-58, filed a counter affidavit, by way of a rejoinder, denying the appellants allegation that appellant 13, Rambirit Rai, had died on 16-6-58, and, they re-asserted, as before, that he died on 22-1-57.

6. The affidavit on behalf of the appellants and the counter-affidavit on behalf of the respondents came up for consideration before a Bench of this Court, which, by an order of the 6th August, 1958, directed an enquiry to be made by the Registrar of this Court regarding the date of death of appellant 13, Rambirit Rai, son of Ugrah Rai.

7. In pursuance of the above order, an enquiry was conducted by the then learned Registrar of this Court, and, he, after a consideration of the oral and documentary evidence of both sides, found that Rambirit Rai died beyond 90 days of the date of the petition for substitution of his heirs. To this report of the Registrar of the 10th February, 1959, the appellants filed objections, on 17-3-59. asking the report of the Registrar to be set aside.

8. When the matter came up for hearing before this Bench, the appellants and the heirs or the deceased appellant 13, filed a joint application on 18-3-60 under Rule 10 Order 22, and, under Rule 10 of Order 1, C. P. C., re-stating that appellant 13 died on 16-6-58, and, prayed that, if it be found that appellant 1,3 died before ninety days of the filing of their application for substitution under Rule 3, Order 22 of the Code, earlier on 31-7-58, then in that case the question of applicability of Rule 10, Order 22, may be considered, and, the heirs of the deceased appellant 13 may be added as parties to the appeal under Rule 10, Order 22, read with Rule 10, Order 1, of the Code.

9. We are, therefore, concerned in the present appeal, at present, with the above two applications made by the appellants, one under Rule 3, Order 22, on 31-7-58, and the other, made by them along with the heirs of the deceased appellant 13 on 1