SANJAY K. AGRAWAL, J. (C.A.V.)

1. The petitioner is plaintiff before the trial Court. Suit filed for declaration and injunction with regard to suit land was dismissed on merits on 11-9-1995. Feeling dissatisfied and aggrieved against the judgment and decree dismissing the suit, the petitioner / plaintiff preferred an appeal under Section 96 of the CPC on 16-2-1996 which came to be dismissed for want of prosecution on 18-6-2003 and in order to get the appeal restored, he preferred an application under Order 41, Rule 19 of the CPC assigning the cause for his nonappearance when the case was called-up for hearing, on the next day itself, but in the meanwhile, defendants No.2 and 4 died and he preferred an application for substitution under Order 22, Rule 4 of the CPC which was rejected by the impugned order and thereby also consequently, the application under Order 41, Rule 19 of the CPC was rejected. Questioning legality and validity of the order rejecting application under Order 41, Rule 19 of the CPC, the petitioner / plaintiff has preferred this revision under Section 115 of the CPC.

2. Mr. Manoj Paranjpe, learned counsel appearing for the petitioner / plaintiff would submit that the provisions contained in Order 22, Rule 4 of the CPC are not applicable in the instant case i.e. proceedings like Order 41, Rule 19 of the CPC and therefore the first appellate Court is absolutely unjustified in dismissing the application under Order 41, Rule 19 of the CPC as abated and consequently, the impugned order deserves to be set aside. He placed heavy reliance upon a Division Bench's decision of the M.P. High Court in the matter of Sayeeda Begam and another v. Ashraf Hussain Anwar Hussain and others, 1980 M.P.L.J. 46 : AIR 1980 MP 12 followed by that Court in the matter of Shikhar Chandra Jain (since dead) through L.Rs. Anil Kumar Jain and others v. State of M.P. and others, 2004(4) M.P.H.T. 402.

3. On the other hand, Mr. P.P. Sahu, learned counsel appearing for respondents No.1, 2, 5 and 6, would submit that against the order rejecting application under Order 41, Rule 19 of the CPC, appeal under Order 43, Rule 1 (t) of the CPC would lie, as such, the revision is not maintainable. He would further submits that Order 41, Rule 19 of the CPC includes Order 9 therefore, Order 22 is applicable in the miscellaneous proceeding including while considering application under Order 41, Rule 19 of the CPC and placed reliance in the matter of Mst. Nurnahar Bewa and Anr. v. Rabindra Nath Dev and Ors., AIR 1988 Cal 358 and Puran Singh and others v. State of Punjab and others, AIR 1996 SC 1092 to buttress his submission.

4. I have heard learned counsel for the parties and given thoughtful consideration to the contentions made therein and also gone through the record with utmost circumspection.

5. In Sayeeda Begam (supra), the question referred to the Division Bench for answer was, whether the provisions of Order 22 read with Section 141 of the CPC would apply to proceeding initiated under Order 9, for restoration, of a suit dismissed in default, and there was cleavage of opinion.

6. The Division Bench of the M.P. High Court considered the question so posed threadbare with reference to Section 141 of the CPC and Article 120 of the Limitation Act and held that said Article of the Limitation Act, which provides limitation for substitution of legal representatives of plaintiff or defendant, cannot be applied for substitution in order of proceeding and application for substitution in such a case would be governed by residuary Article; there being no special provision. It was succinctly held as under: -

"7. Order 22 contains penal provisions which affect substantive rights of the plaintiff or the appellant, as the case may be, when an application for substitution is not filed within time. The penal provisions have to be construed strictly. Unless they expressly declare the provisions to be applicable to a proceeding other than a suit or appeal, those provisi