S.B. Sanyal, J.

This civil revision is directed against the order dated 5th December, 1990, passed by the 1st Additional Munsif, Bhagalpur, refusing to condone the delay, there by refusing to set aside the abatement for the purpose of substitution of the heir of deceased defendant No.4. The impugned order comprises of two parts; refusing to condone the delay in filing the substitution petition for substituting the heirs of defendant No.4 and the consequential order of abatement of the suit against the heirs of defendant No.4.

2. A civil revision bas been filed in this Court where in the challenge has been confined to that part of the impugned order by which the condonation petition has been dismissed. The stamp reporter bas questioned the maintainability of the civil revision as according to the stamp report, an appeal ties from such an order.

3. Mr. Parmeshwar Prasad appearing on behalf of the petitioners has argued that against the order of statement, an appeal lies in view of the provision of Order XLIII, Rule 1(k) of the Civil Procedure Code, but where condonation petition is dismissed, the parties are at liberty to move this Court under section 115 of the Code of Civil Procedure. He has tried to show how the Court has failed to exercise jurisdiction and the law relating to condonation has been ignored in refusing to condone the delay.

4. The point raised by the learned counsel for the petitioners, even though appears to be very attractive at the outset, but on deep consideration the points do not bear substance.

5. By Act, 104 of 1976, there has been an amendment of the Code of Civil Procedure. By this amendment, Order XXII, sub-rules (4) and (5) of Rule 4 have been newly added. Sub-rule (4) of rule 5 contemplates that the Court may exempt the plaintiff the necessity of substituting the legal representatives of such defendant who has not filed any written statement or who, having filed it, has failed to appear and contest the suit at the hearing, and judgment, in such a case, may be pronounced against the said defendant, notwithstanding the death of such defendant, and the judgment will have the same force and effect as it had been pronounced before the death took place. It also contemplates where the plaintiff was ignorant about the death of the defendant, and for that reason, could not file the application for substitution of the legal representative of the defendant within the period specified in the Limitation Act, he may do so by filing a condonation petition under section 5 of the Limitation Act, and the Court shall dispose it, by giving due regard to the fact of such ignorance. It will, therefore, be observed that now the added provisions entitle a person to file a substitution petition along with an application under Section 5 of the Limitation Act, and the Court is directed to bear in view the ignorance of the knowledge of the date of death of the defendant.

Order XXII, sub-rule (2) of Rule 9 of the Code of Civil Procedure state that where a suit abates or is dismissed under this Order, no fresh suit on the same cause of action is maintainable. It further empowers the plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver, etc., etc., to apply for an order to set aside the abatement or dismissal if it is proved that he was prevented by any sufficient cause from continuing the suit, and the Court shall set aside the abatement or dismissal upon such terms as to costs. Order XXII, Rule 9(3) refers to section 5 of the Limitation Act, to apply to applications under sub-rule (2) of Rule 9.

An appeal lies under Order XLIII, Rule 1(k) of the Code of Civil Procedure. The laid provision reads as follows:

"an order/under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit."

6. It appears that the entire Scheme of Order XXII. Rule 9 embraces a petition under section 5 of the Limitation Act, for condonation of the delay for setting