1. - Heard learned counsel for the parties.

2. The petitioner in this writ petition has challenged the order dated 11.02.2004 by which the final decree proceedings in a suit for partition were dismissed as having abated by the learned Civil Judge (Junior Division), Rajgarh.

3. Learned counsel for the petitioner submitted that the preliminary decree was passed on 04.11.1989 and it was upheld by the learned appellate court by judgment and decree dated 17.05.1997 in which the shares of the parties were determined as per the decree. The plaintiff moved the learned trial court for preparation of the final decree and the same came to be passed by the learned trial court on 29.08.1997.

4. An application for preparation of final decree was instituted by the plaintiff and during the pendency of the same, the plaintiff died on 15.07.2000. In the meantime, the second appeal before the High Court against the preliminary decree which was pending was dismissed vide judgment dated 11.02.2004. The legal representatives of the plaintiff filed the present application for substitution on 26.07.2004 in Misc. Case No.27 of 1997.

5. An objection was raised that the application for substitution has not been filed within the prescribed period of limitation and hence, the final decree proceeded stood abated.

6. The learned court below was of the opinion that the provisions of Order 22 C.P.C. were applicable and since the application for substitution had not been filed within the prescribe period of limitation, the final decree proceedings stood abated. It is against the aforesaid order dated 10.03.2006 dismissing the application that this writ petition has been filed.

7. Learned counsel for the petitioner submitted on the basis of the Division Bench Judgment of this court in the case of Pooranchand and Others v. Shriram and Others reported in AIR 1963 Rajasthan 245 that there is no abatement of final decree proceedings. In the case of Pooranchand, which was decided by the Division Bench of this Court, the original plaintiff-decree holder died during the pendency of appeal arising from the final decree. The question arose whether the provisions of Order 22 Rule 3 and 4 C.P.C. apply to the final decree proceedings. In para 8 and 9 of the said report, the question that was considered was that the application had been filed after the period of 90 days and that the appeal had already abated as no application had been filed for setting aside the abatement under Order 22 Rule 9 C.P.C. and, therefore, the appeal should have been dismissed.

8. To the aforesaid contention, the respondent in Pooranchand's case (supra) submitted that preliminary decree had already been passed by the court on 10.12.1956 and that the plaintiff had died on 19.02.1959 after the preliminary decree was passed and, therefore, the question of abatement did not arise. As would be seen from para 9 of the said report, the question which was considered by the Division Bench was "Whether the suit abated under Order 22 Rule 3 C.P.C. on account of the respondents' failure to file an application within the period of 90 days".

9. The learned Judges of the Division Bench of this court took note of the decision of their Lordships of the Privy Council in Lacchmi Narain v. Balmakund reported in AIR 1924 PC 198 wherein it was held as under:-

"Order 22 Rr.3 and 4 did not apply to cases of death after the passing of preliminary decree."

10. Taking note of the aforesaid, learned Judges of the Division Bench of this court held as follows:-

"This view does not appear to have been changed by that Court, since no decision of that Court to the contrary has been referred to us."

11. The learned Judges of the Division Bench of this Court also noted that simiar view has been taken by the Bombay High Court in the case of Dawarali Jafarali v. Bai Jadi reported in AIR 1940 Bom. 318 wherein it was held as follows:-

".....he having obtained a preliminary decree, it was no longer open to him to file another suit on