An application for setting aside the abatement and substituting the heirs of a deceased defendant should be made and dealt with by the trial court in which the abatement occurred. The appellate court has no jurisdiction to entertain such an application.

T. R. Handa J.—This petition under section 115 of the Code of Civil Procedure, hereinafter referred to as the Code is to seek revision of the order dated 21-3-1980 passed by the Additional District Judge Mandi on an application presented to him under order 22, rule 4 read with rule 9 of the Code.

2. It appears that Raghu Ram and others, the respondents herein (hereinafter called the plaintiffs) brought a suit against the present petitioners and one Ghyaru (defendant) praying for a declaration that the plaintiffs were the exclusive owners and in possession of 3/4th share in the land detailed in the plaint and for issue of a perpetual injunction restraining the defendants from interfering with the possession of the plaintiffs over such land. The plea of the defendants was that they were in actual possession of the suit land previously as tenants under the plaintiffs and since the enforcement of the Himachal Pradesh Tenancy and Land Reforms Act as owners and as such the plaintiffs were not entitled to any relief.

3. Along with the suit the plaintiffs filed an application under order 39, rules 1 and 2 of the Code for issue of an ad interim injunction of the nature prayed for in the suit. That application was dismissed by the trial Court vide its order dated 11-9-1979.

4. The plaintiffs then approached the District Judge in appeal against the order dated 11-9-1979 (supra) passed by the trial Court. That appeal was entrusted to the Additional District Judge for disposal. During the pendency of the appeal before the Additional District Judge, the plaintiffs on 11-1-1980 moved an application in that Court under order 22, rules 4 and 9 of the Code alleging that Ghyaru defendant had died on 7-9-1979 and praying that after setting aside the abatement, Smt. Jhunu the widow of the deceased being his sole legal representative be brought on the record.

5. Vide his impugned order, the learned Additional District Judge found that there was no sufficient cause to set aside the abatement and hence he rejected the application. The Additional District Judge, however, further found that the abatement was only partial as against the share of Ghyaru deceased and the entire suit had not, therefore, abated.

6. The petitioners in this revision petition claim that the suit had abated in toto and not in part and hence they have approached this Court with the prayer that the impugned order of the Additional District Judge be modified accordingly.

7. As is apparent from the above narration of facts, the proceedings under order 22, rules 4 and 9 of the Code arose before the Additional District Judge in the course of hearing of the appeal against the order dated 11-9-1979 passed by the trial Court dismissing the plaintiffs application made under order 39, rules 1 and 2 of the Code. It is an admitted position that Ghyaru defendant was already dead when the trial Court passed its order dated 11-9-1979, the deceased having died on 7-9-1979. I have ascertained from the record in the presence of the learned counsel for the parties that the plaintiffs application under order 39, rules 1 and 2 of the Code Game up for Hearing before the trial Court only after the death of Ghyaru on 11-9-1979 on which date it was dismissed. The order dated 11-9-1979 passed by the trial Court against the plaintiffs preferred the appeal, was thus passed against a dead person also.

8. It is again not disputed that in the appeal preferred by the plain tiffs against the order dated 11-9-1979 passed by the trial Court a dead per son, namely, Ghyaru defendant had been impleaded as a party respondent.

9. On the facts narrated above and which are not in dispute, I find that the learned Additional District Judge had no jurisdiction to entertain or dispose of the plaintiffs application under order 22, rules 4 and 9 of the Code and that the impugned order is liable to be quashed as a whole on this short ground alone. The proceedings under order 22, whether these be for bringing on record the leg