1. Title (Mortgage) Suit No. 138 of 1986 was filed by the State Bank of India, plaintiff-opposite party, against Laxami Narayan Rice Mill, a partnership firm and its partners Sri Kailash Kumar Khowala and Sri Ram Avtar Khowala which is pending in the Court of Subordinate Judge-V, Deoghar.

2. During the pendency of the suit defendant No. 3 Sri Ram Avtar Khowala died on 18-9-1991. It is claimed on behalf of the petitioners that defendant No. 2, through the other partner of the firm, had duly intimated the fact of the death of defendant on 1-10-1991 to the plaintiff-bank, yet no steps were taken for substitution of the legal heirs of the deceased defendant No. 3 and again on 16-3-1992 information regarding the death of defendant No. 3 was sent to the plaintiff-bank yet again no steps were taken for substitution.

3. It appears that defendants 1 and 2 appeared in the court below on 16-2-1994 after substituted service by publication and filed a petition on 24-5-1994 under O. 22, R. 4 read with S. 151 of the Code of Civil Procedure stating that the suit as a whole has abated on account of non-substitution of the heirs of deceased defendant No. 3. It was stated in that petition tha