B.P.JHA, J.

1. In a civil revision petition, these petitioners (defendants 12 to 14) have challenged the validity of the order dated 29th March, 1978 passed by the First Subordinate, Judge, Arrah, in Title suit No. 46 of 1977. By virtue of this order, the learned Subordinate Judge was pleased to set aside the abatement and exempted the plaintiffs from substituting the legal heirs of defendants 1 and 10. It is this order which is under challenge before this court.

2. The plaintiffs filed the suit for a declaration that the sale deed dated 15th May, 1972 executed by defendants 1 to 7 in favour of defendants 12 to 14 is void and inoperative so far as the plaintiffs and defendants 8 to 11 are concerned. The common ancestor of the original plaintiffs and defendants 1 to 7 and defendants 8 to 11 was Bhagwan Prasad. He died leaving behind three sons, namely, Mahesh Prasad, Bishwanath Prasad and Mahadeo Prasad. The original plaintiffs belonged to the branch of Bishwanath Prasad, whereas defendants 1 to 7 belonged to the branch of Mahesh Prasad, and defendants 8 to 11 belonged to the branch of Mahadeo Prasad. By virtue of the sale deed dated 15th May, 1972, defendants 1 to 7 sold the suit properties to defendants 12 to 14. The case of the plaintiffs and defendants 8 to 11 was that defendants 1 to 7 had no right to sell the share of the plaintiffs and defendants 8 to 11. The suit was originally filed before the Subordinate Judge at Varanasi. By the order of the Supreme Court, the present suit was transferred from Varanasi to the court of the Subordinate Judge at Arrah.

3. In the present case, the admitted position is that defendant No. 1 Dr. Vishnu Shankar died on 5th August, 1975, and Satyanarain Prasad (defendant No. 10) died on 6th January, 1975. It is also an admitted position that the original plaintiffs did not file any application for substitution within 90 days of the date of death of defendants 1 and 10. Defendant No. 11 Sri S.P. Sinha filed an application for substituting the heirs of Dr. Vishnu Shankar on 29th November, 1975, and this application was filed within 150 days, that is, within statutory period for setting aside abatement.

4. By the order dated 3rd February, 1978, defendant No. 11 Sri S.P. Singh was transposed as a plaintiff. On 13th March, 1978, the transposed plaintiff Sri S.P. Singh filed an application to set aside the abatement and to substitute the heirs of defendant No. 10. Defendant No. 11 (the transposed plaintiff) also filed an application to exempt the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants. Defendant No. 10 Satyanarain Prasad died on 6th January, 1975. The original plaintiffs had filed an application for substitution on 28th April, 1975, but later on the petition for substitution was not pressed.

5. On these facts, the trial court set aside the abatement and also exempted, the plaintiffs from substituting the legal representatives of the deceased defendants under Order 22, Rule 4(4) of the Civil P.C.

6. The short point for consideration in this civil revision petition is : Whether the court has power to exempt the plaintiffs from the necessity of substituting the legal representatives in a case where the suit abated on account of non-filing of any substitution petition within ninety days of the date of death of the deceased defendant ?

7. In the present case, the admitted position is that no application for substitution was filed within ninety days from the date of death of defendants 1 and 10. On 13th March, 1978, an application was filed by the transposed plaintiff, S.P. Singh, for setting aside abatement and for exempting the plaintiffs from the necessity of substituting the legal representatives of the deceased defendants. Learned counsel for the petitioners contends that the provisions of Order 22, Rule 4(4) of the Civil P.C. apply before the suit has abated and not after that. In this connection, he relies on two decisions, namely