DIPAK KUMAR SEN, J.

( 1 ) THE original plaintiff in this suit was one Pramila Sundari Laha who instituted this suit on the 24th August, 1938, for certain reliefs in respect of the Will of Debendra Deb Manna, deceased, certain Debuttar properties alleged to have been dedicated by the said Debendra Deb Manna and in respect of certain other properties purchased by one Jogendra Deb Manna out of the funds or income of the properties dedicated as aforesaid. A declaration that all aliena tions of properties appertaining to the said Debuttar estate were void and thai the consent decree made in an earlier suit being Suit No. 372 of 1915 in this Court was void and of no effect and not binding on the deities was also claimed. It ap-pears that the Writ of Summons was duly served on the defendants who were on record at that time.

( 2 ) PRAMILA Sundari Laha, the original plaintiff, died on or before 2nd February. 1943. On an application made thereafter on or about 20th December, 1943 one Karunamayee Dassi was appointed as the next friend of the plaintiff Deity in place and stead of the original plaintiff. Thirty seven years thereafter by an order of this Court made on the 10th April, 1970, Karunamayee Dassi was removed from her office as the next friend and one Tarasundari Dassi, the present petitioner, was appointed the next friend of the plaintiff Deity with liberty to proceed with the suit. It does not appear what particular steps were taken to have the suit heard thereafter.

( 3 ) AFTER the present petitioner was appointed the next friend and was brought on record several of the defendants who were on record died. The particulars of the said deceased defendants are as follows: (1) Harendra Deb Manna, the defendant No. 9 (c) who died on 14th December, 1971; (2) Manindra Deb Manna, the defendant No. 9 (b) who died on 16th January, 1971; (3) Ramendra Deb Manna the defendant No. 14 (a) who died on 3rd July, 1973; (4) Hemendra Deb Manna the defendant No. 4 (b) who died on 7th October. 1973 and (51 defendant No. 23. Asim Krishna Dutta also died.

( 4 ) THE case of the present petitioner is that from the affidavit-in-opposition affirmed by one Makhanlal Assadas Joshi on the 30th November, 1973, she for the first time came to know of some of the deaths.

( 5 ) ON the 31st January, 1974, the present petitioner took out the present Master's Summons praying, inter alia, for the following orders: (a) that the delay in making this application, if any. be condoned; (b) abatement or partial abatement, if any, be set aside; (c) the death of the deceased defendants as stated in paragraphs 16, 17, 18, 19 and 20 of the petition be recorded (d) the heirs and legal representatives of the said deceased defendants be substituted in place and stead of the deceased defendants as indicated in red ink in a copy of the Cause Title and suit register including the genealogical table of the deceased defendants annexed to the petition and collectively marked with the letter "b" (e) a copy of the order made herein together with a copy of the amended plaint be served on the substituted defendants.

( 6 ) THIS application has been opposed by several of the defendants including some of the purchasers of the properties which are the subject-matters of this suit.

( 7 ) THE last of the defendants to die, except the defendant No. 23 as stated hereinbefore, was Hemendra Deb Manna who died on 7th October, 1973. All the other defendants died prior to that date. Under Order 22, Rule 4 of the Code of Civil Procedure, the present petitioner should have made this application within 90 days from the date of death of the defendants. That 90 days expired in respect of all the defendants who have died. No particulars have been given of the death of the defendant No. 23 or the date when the petitioner knew of such death. In the circumstances under Order 22, Rule 4, Sub-rule (3), the suit has abated as against the deceased defendants. The application to set aside the abatement should

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