The provisions of Order 22, Civil Procedure Code are not attracted in a suit for partition and division of holding. The provisions of Order 1 Rule 10, Civil Procedure Code can over-ride the specific provisions of Order 22, Civil Procedure Code and the legal representatives of the deceased party can be brought on record under Order 1 Rule 10, Civil Procedure Code.

1. This writ petition is directed against the judgment of the Board of Revenue for Rajasthan, Ajmer dated 2nd November, 1983 and 5th June. 1984.

2. Briefly stated the facts of the case are that non-petitioner No. 5, Kanhaiyalal, filed a suit on 24th March, 1965, in the Court of the Assistant Collector, Baran. under Section of the Rajasthan Tenancy Act against Shri Krishna, Shanti Devi, Attar Bai, Rameshwar, Janki Devi and Chhitarmal. The defendants in the suit denied the averments of the plaint. The learned trial Court dismissed the plaintiff's suit by its judgment dated 31st August. 1971. Being aggrieved by the said judgment and decree of the learned Asstt. Collector. Baran, Kanhaiyalal, non-petitioner No. 5 in the writ petition, filed an appeal before the Revenue Appellate Authority, Kota. The Revenue Appellate Authority by its judgment and decree dated 28th January, 1980. accepted the appeal and set aside the judgment and decree passed by the Asstt. Collector, Baran and decreed the suit of non-petitioner Kanhaiyalal. It was declared that Kanhaiyalal is the khatedar of the land in dispute to the extent of half share & a decree was also passed for division of holding to the extent of one half share with a direction to pass a final decree. Aggrieved by the said judgment of the Revenue Appellate Authority, Shri Krishna filed a revision petition (sic appeal) before the Board of Revenue. During the pendency of the appeal, Shri Krishna, father of petitioners No. 1 to 3 and husband of petitioner No 4 expired on 10th October, 1981. The petitioners could not file an application for bringing on record the legal representatives of the deceased. Shri Krishna, as they were not living in the village Siswali where Shri Krishna died. They could not communicate to the Advocate of their father about the death of Shri Krishna. The learned Advocate for respondent, Kanhaiya Lal, raised an objection that Shri Krishna had died. On such an objection having been raised. the Board of Revenue vide its order dated 2nd November, 1983, dismissed the appeal as abated. The petitioners, after they came to know of this fact, filed an application for review of the order under Section of the Rajasthan Tenancy Act and prayed for setting aside the abatement and making the petitioners as parties in the proceedings under Order 22 read with order 1 Rule 10, Civil Procedure Code. An application under Section of the Limitation Act was also filed before the Board of Revenue. The Board of Revenue dismissed the application for review vide its order dated 5th June, 1984. It is against this order that the writ petition has been filed.

3. Through this writ petition. the petitioners have not only challenged the order of the Board of Revenue, dated 5th June, 1984, but have also challenged the order dated 2nd November, 1963. Shri Pareek, learned counsel for the petitioners, submitted that there is an error apparent on the face of the record as in the impugned order dated 5th June, 1984, a Division Bench of the Board of Revenue, failed to consider that the suit filed by the plaintiff was only a suit for division of holding and it was not a suit for declaration of half share in the Khatedari. It was also submitted that since the suit of the plaintiff was a suit for partition and, a suit for partition does not abate as the heir of the deceased party could the an application for being made a party under Order 1 Rule 10. Civil Procedure Code. It was also urged by Shri Pareek that the petitioners were entitled to bring an application under Order 1 Rule 10, Civil Procedure Code irrespective of the fact that they had not ,filed any application for bringing the legal representatives of the deceased. Shri Krishna on record In this view of the matter. there is also an error apparent on the face of the record.

4. Shri Pareek also submitted that after passing of the preliminary decree, the provisions of Order 22 Rule 3. Civil Procedure Code are not applicable. The learned counsel fo