Honble YADAV, J. – Heard.

(2) Perused the substitution application,for setting aside abatement and application moved under Section 5 of the Indian Limitation Act for condonation of delay together with counter- affidavit filed by the heirs and legal representatives of deceased respondents No. 1 and 2, opposing the aforesaid applications.

(3) In the present Second Appeal an application for setting aside the abatement supported with an affidavit has been moved as envisaged under Order 22 Rule 9 CPC wherein in the affidavit it is alleged that the defendant-appellants came to know about the death of plaintiff-respondent No. 1 Mohan Lal who expired on 15.2.94 and about the death of plaintiff-respondent No. 2 Baloo Lal who expired on 13.8.88 from the application dated 10.4.95 moved by the counsel of heirs and legal representatives of deceased respondent Nos. 1 and 2, for dismissing the appeal as abated due to their failure to move substitution application within limitation. It is stated that after getting information on 10.4.95 from the aforesaid application the counsel for defendant appellants wrote a letter on 15.4.95 to them which was received by Shri Mishri Lal appellant no. 2 who in turn wrote a letter to appellant No. 5, Bhuralal who is suffering from paralysis therefore he informed his son Madan Lal and made him conversant about the death of respondents No.1 and 2.

(4) It is further stated in paragraph 4 of the aforesaid affidavit that before appli- cation for dismissing the appeal as abated on 10.4.95 was moved by the learned counsel of heirs and legal representatives of deceased plaintiff-respondents named above the appellants have no knowledge about the death of the respondents No. 1 and 2.

(5) The heirs and legal representatives of deceased -respondents No. 1 and 2 have filed a counter-affidavit denying the averments made in the affidavit moved in support of setting aside the abatement and also controverted the application for condonation of delay.

(6) It is stated in paragraph 3 of the counter-affidavit filed by Ramesh Chandra, adopted son of deceased plaintiff-respondent No. 2,Baloo Lal that all the appellants are residing in the same Mohalla Koushithal at which place death of respondent No. 2 took place on 13.8. 1988, therefore, they have full knowledge about the death of respondent No. 2. It is specifically stated that one Shantilal who is residing with appellant No. 5 Bhuralal has participated in the funeral of respondent No. 2 there- fore the appellants have full knowledge on 13.8.88 itself about death of respondent No. 2 but they did not move any substitution application within limitation. The appellants deliberately and willfully remained silent about seven years after getting knowledge about the date of death of plaintiff-respondent No.2.

(7) With regard to knowledge about death of respondent No. 1 it is stated in the counter-affidavit that respondent No. 1 expired in Deoria which is only 4 Kilometres away from Koushithall the place of residence of the appellants where appellants used to make frequent visits and as such they have full knowledge about the death of respondent No.1.

(8) There is no quarrel about the principle of law that immediately after expiry of 90 days if no application for substitution is moved by the plaintiff or appellant after death of any of the plaintiff or defendant or appellant or respondent as the case may be then under the present Civil Procedure Code an abatement takes place automatically without any judicial order and such abatement can be set aside on an application under Order 22 Rule 9 CPC even if noformal judicial order declaring the abatement has been passed.The provisions of Section 5 of the Limitation Act has been made applicable to such applications.

(9) It is well to remember that an application for substitution is to be moved by the plaintiff or appellant within 90 days as contained under Article 120 of Indian Limitation Act 1963 from the date of death of the plaintiff, appellant de

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