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