The provisions of Order 22 C. P. C. relating to abatement of appeals are mandatory and cannot be overridden by Order 41, Rule 4 C. P. C., which is an enabling provision.

I. N. MODI, J.

( 1 ) THIS is a regular first appeal by the defendants Padmaram and six others in a suit for partition and has come up for arguments before me on a question relating to the abatement of the appeal in circumstances presently to be mentioned.

( 2 ) THE parties are Jats and are descendants of a common ancestor. Nanak and Shriram were two brother. Nanak brought the suit out of which this appeal arises for possession by partition of certain land situate in village Chhapawali, Tehsil Hanumangarh, in which he claimed a half share. Nanak having died is now represented by his five sons Surja and others in this appeal. The defendants in the suit were Padmaram and five others, sons of Shriram, and Gopi, a grandson of Shriram. The suit was filed in a revenue court, namely, that of the Deputy Commissioner, Hanumangarh, and was later transferred to the court of the Collector, Ganganagar, who having been of the opinion that a question of proprietary title was raised in the case referred it to the District Judge, Ganganagar. The correct procedure for the Collector should have been to refer the specific issue or issues relating to proprietary title to the District Judge instead of referring the whole case to him. Be that as it may, the learned District Judge decided the issues which fell within the scope of Section 36 of the Rajasthan Revenue Courts (Procedure and Jurisdiction) Act (No. I) of 1951, and sent the case back to the Collector. Thereupon the latter held that the plaintiffs were entitled to get possession of half share by partition of the land measuring 1981 Bighas and gave certain directions for the actual partition of the land by metes and bounds with which we are not concerned for the purposes of the present appeal.

( 3 ) AGGRIEVED by this decree, the defendants appellants Padmaram and others filed the present appeal in this Court on the 17th October, 1957. Padmaram, however, died on the 1st November, 1958, during the pendency of the appeal in this Court. An application to bring the legal representatives of the deceased Padmaram was made here on the 4th July, 1959, long after the period of limitation of 90 days prescribed by Article 176 of the Limitation Act. This application is opposed by the respondents.

( 4 ) IT may be mentioned here, before proceeding further that proceedings were in the meantime going on in the trial court for the passing of a final decree and in those proceedings the respondents Surja and others had made an application to the trial court on the 14th November, 1958 for substituting the legal representatives of Padmaram in his place, and this application was allowed on the 4th March, 1959, with the result that the widow and the only son of Padmaram, namely, Maniram, were brought on the record of the trial court. The sole ground on which reliance was placed by the appellants for making their application for substitution of the legal representatives of the deceased Padmaram in his place so late as the 4th July. 1958, in his appeal was that in fact Padmaranis legal representatives had been brought on record in the trial court at the instance of the respondents themselves on the 4th March, 1959, and, therefore, it was merely a formal matter so fur as their substitution in this appeal was concerned. In the affidavit which was filed in support of this application by Maniram, son of Padmaram, it was stated that their counsel at Hanumangarh had advised the legal representatives of Padmaram that as their names had been brought on the record of the original suit at the instance of the respondents, it was not necessary for them to make any application in this appeal for bringing them on record in place of the deceased. Later, however, when the appellant Momenram brother of Padmaram came to Jodhpur on the 30th June, 1959, in connection with the obtaining of a stay order in their appeal, their counsel who was in charge of the appeal advised the appellants that it would be better for them to make