1. This appeal is directed against an order dt. 9th May, 1985, passed by Shri R.V. Ram, Subordinate Judge, Aurangabad, in Title Appeal No. 132 of 1973/32 of 1975 whereby and whereunder the learned Court held that the appeal had abated and thereby it rejected the application filed on behalf of the appellants under S.5 of the Limitation Act for setting aside abatement.

2. It appears that in the said appeal the sole respondent died on 8th Nov., 1984. However, no step was taken by the appellants for substituting the heirs and legal representatives of the aforementioned respondent Dharamdeo Singh. During the course of argument only on 18th April, 1985, the learned counsel for the respondents intimated to the Court that the said respondent died and an application for substitution was filed on the next date, i.e., on 19th April, 1985. The appellant in the aforesaid application stated that the respondent was a resident of a different village and, as such he was not aware of the death of the said respondent.

3. The Court below without considering the aforementioned stand taken on behalf of the appellant rejected the said application. In terms of O.22, R.10A of the Civil P.C. a duty