( 1 ) ORDER dated 6-1-1993 passed by the Additional Judge, Small Cause court, Rajkot in Regular Civil Suit No. 70 of 1988 below application at Ex. 57 is under challenge in this revision application.

( 2 ) PRESENT applicant/plaintiff filed an application under Sec. 5 of the Limitation act for condoning the delay in filing an application for bringing heirs of deceaseddefendant tekchand Nithaldas. Deceased died on 4-8-1990 and plaintiff came to know of the same vide purshis filed by the defendants Advocate on 6-9-1990. Plaintiff thereafter filed an application for bringing the heirs on record on 11-12- 1990. As there appeared to be delay of about six days, an application for condonation of delay came to be filed. The learned Judge, after hearing the parties, dismissed the said application on the ground that the plaintiffs application is not in accordance with law and is not maintainable inasmuch as the plaintiff ought to have filed an application for setting aside the abatement and bringing the heirs on record and if there was any delay in the same, for condonation of delay. Mr. Lakhani, learned Advocate for the applicant, contended before the Court that filing of an application for bringing the heirs on record contemplates or implies setting aside of abatement and then bringing the heirs on record and if there is any delay, there was sufficient cause for delay in filing such application and the same should have been condoned. Mr. Lakhani further contended that the court ought not to have taken such a too technical view of the matter, particularly when an application for bringing heirs on record is filed within the period of setting aside an abatement. Mr. Lakhani, therefore, contended that the order passed by the learned Judge is required to be quashed and set aside and his application at Ex. 57 be allowed.

( 3 ) MR. P. M. Thakkar, learned Advocate appearing for the respondent, contended that in absence of setting aside abatement, there is no question of bringing the heirs on record. Unless abatement is set aside, heirs cannot be brought on record and there is no question of condoning delay in absence of any application for setting aside abatement. Abatement is a process of law which occurs by the passage of time without any action on the part of either party. Under the provisions of Order 22 of C. P. C. if a party to the litigation dies, then on completion of 90 days, that litigation stands abated if cause does not survive and if survives, then unless the same is set aside there is no question of bringing heirs on record and no question of condoning delay for filing an application for bringing the heirs on record.

( 4 ) RULE 4 of Order 22 of C. P. C. provides for the procedure in case of death of one of several defendants, or of sole defendant. Relevant part reads as under :-" (1) Where. . . . . . . . . . . . . . . . . . sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party and shall proceed with the suit. (3) Where within the time limited by law, no application is made under sub-rule (1), the suit shall abate as against the deceased-defendant". Sub-Rule (5) provides for condonation of delay in filing an application for setting aside abatement. In the instant case, plaintiff has filed an application for bringing heirs on record and has also filed an application for condonation of delay in filing the said application. Filing of an application for bringing heirs on record implies that the plaintiff wants to set aside the abatement, if any, that has occurred and bring the heirs on record. No application for bringing heirs can be granted without setting aside an abatement. Therefore, in my opinion, filing of an application for bringing heirs on record impliedly states that the plaintiff or an applicant wants the abatement to be set aside and bring heirs on record.