The provisions of Order 22, Rule 4 (4) of the CPC, inserted by the Code of Civil Procedure (Amendment) Act, 1976, can be applied retrospectively to suits that were pending at the time the Act came into force, provided that no order of abatement had been passed by the court before the commencement of the Act.

V. P. Gupta, J.—This revision petition is directed against the order, dated 21st June, 1978, passed by the Senior Sub Judge, Mandi, by which he has allowed the application of the plaintiff and exempted him from the necessity of substituting the legal representatives of deceased defendants 3 and 4, i.e., Shri Dev and Mansukh respectively who had been proceeded ex parte in the suit.

2. The brief facts of the case are that Gaur Singh plaintiff filed a suit on 17th August, 1971, for partition of the alleged joint property in the court of the Senior Sub Judge, Mandi. It was alleged by him that he is a co-sharer and is in joint possession of the property in dispute and as such is entitled to have separate possession of the same.

3. There were nine defendants in the suit and out of these only defendants 1 and 9 contested the suit and filed a written statement as is apparent from the order, dated 29th April, 1972. The other defendants 2 to 8 were proceeded ex parte. Defendants 3 and 4 were proceeded ex parte on 29th March 1972 and 19th November, 1971 respectively.

4. During the pendency of the suit, Gaur Singh plaintiff died on 7t& i October, 1975 and an application for impleading his legal heirs was filed on 2nd January, 1976. This application appears to have been allowed on 11th October, 197o and thereafter proceedings in the suit continued.

5. On 21st March, 1978, an application was filed by defendants 1 and 9 praying that the suit of the plaintiff be dismissed, as having been abated in its entirety because Shri Dev, defendant 3, had died on,3rd October, 1972, and Mansukh, defendant 4, had died on 4th January, 1973 and their legal representatives had not been brought on record within time. The case was postponed to 13th April, 1978, for filing a reply to this application and arguments on the same.

6. On 13th April, 1978, the plaintiff filed an application under Order 22, Rule 4 (4) read with section 151 C. P. C. and section 5 of the Indian Limitation Act praying that deceased defendants 3 and 4 had been proceeded parte, they had not filed any written statement an 1 that they had failed to contest at the hearing because they were not interested in the subject matter of the suit. It was also alleged that the plaintiff was old and physically disabled to act effectively in the suit and was ignorant about the death of those defendants and that those defendants were not contesting the suit. It was also alleged that cue plaintiff came to know on 2lst March, 1978 only, that the legal representatives of those defendants are to be brought on the record. In these circumstances, it was prayed that the plaintiff be exempted from the necessity and substituting the legal representatives of defendants 3 and 4 and in case this exemption i. e not allowed then the abatement, if any, be set aside and necessary orders be passed. The plaintiff also filed a reply to the application of defendants 1 and 9 alleging similar facts.

7. This application was contested by defendants 1 and

9. The Senior Sub Judge, Mandi, vide his order, dated 28th June, 1978, has disposed of the said application filed by the defendants I and 9 for dismissal of the plaintiffs suit on the ground of abatement, and the other application filed by the plaintiff under Order 22, Rule 4 (4) C.P.C. read with section 151, C. P. C. and section 5 of the Indian Limitation Act.

8. In this revision petition, the learned counsel for the petitioner has contended that the order of the Senior Sub Judge passed on the application is illegal, unjust and improper and that the same is liable to be set aside. According to him the provisions of Act No. 104 of 1976 (hereinafter referred to as the Act of 1976) by which the Civil Procedure Code (shortly called the Code) was amended and in Order 22 Rule 4 of the old Code, Sub rule (4) was inserted, is not applicable in the present case as the deaths of Shri Dev and Mansukh defendants took place in the years 1972 and 1973 respectively, i.e , before the commence