R. P. MOOKERJEE, J.

( 1 ) THE opposite party No. 4 was reported to be dead by the serving peon in his report dated 22-5-1949. No application for substitution having been filed for a period over 90 days from the date of the peon's report the Registrar recorded an order on 26-8-1949, that there had been abatement so far as opposite party N. 4 was concerned. On 10-11-1949, an application was filed on behalf of the petitioner with notice to the surviving opposite parties that on the death of opposite party No. 4, opposite parties 1 to 3 were the heirs of the said deceased opposite party No. 4 and that a note might be made to that effect. An objection was raised on behalf of the opposite party Nos. 1 to 3 to the effect that opposite parties Nos. 1 to 3 had been on the record previously in their personal capacity; on the death of opposite party No. 4, their mother, they were representing her interest in a different capacity. It was contended that an application for substitution in such a case was necessary and no such application having been made within the period of limitation, the note which had been made of the abatement so far as opposite party No. 4 was concerned must be allowed to

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