An application under Order IX, Rule 9, C. P. C. is a civil proceeding and the provisions of Order XXII, Rule 3, C. P. C. are applicable to such an application.

V. P. Gupta, J.—The petitioner has challenged the order dated 31-3-1978 passed by the Sub-Judge, Una on an application under Order XXII, Rule 3 of Code of Civil Procedure (hereinafter called the Code), filed by the present petitioner.

2. The brief facts are that Kodu alias Izzat Rai son of Krishan Dass filed a suit for declaration and injunction and also in the alternative for pos session of the land detailed in the plaint in the court of Sub-Judge, Una on 6-11-1970, against Des Raj respondent. The defendant contested the suit arid this suit was fixed for 5-12-1&76 for defendants evidence. On 5-12- 1976 the plaintiff or his counsel did not appear in court and as such the Suit was dismissed in default by the Sub-Judge, Una.

3. Application for restoration of the suit .was filed by the plaintiff Kodu on 18-12-1976 and it was alleged that on 5-12-1976, due to illness he could not appear in person and also could not bring his counsel from Hoshiarpur for conducting the case. Notice of this application was issued to the defendant/respondent. In the meantime the plaintiff Kodu died, with the result the present petitioner claiming himself to be a legal representative of deceased Kodu filed an application under Order XXII, Rule j, C. P. C. for being impleaded as a party on the allegations that Kodu plaintiff had died on 10-1-1977. This application was filed on 1-2-1977 by the present petitioner. The defendant respondent contested this application and on the pleadings of the parties the following issues were framed on 18-5-1977 .

1. Whether the applicant Mahabir Prasad is the legal representative of the deceased Kodu as alleged ?

2. Whether there are other legal representatives of the deceased Kodu also. If so what effect ?

3. Relief.

4. After recording the evidence of the parties the learned Sub-Judge dismissed the application. Now the present petitioner has filed this revision petition.

5. I have heard Mr. Om Prakash Sharma counsel for the petitioner and Mr H. K. Bhardwaj, counsel for the respondent.

6. The learned counsel for the respondent raised a preliminary objection, to the effect that the application under Order XXII Rule 3 C. P. C filed by the petitioner is not maintainable, because the original plaintiff Kodu had died on 10-1-1977 and the application was filed by the present petitioner on \-2-\9~n, when no suit was pending in the Court. The petitioners counsel contended that Kodu had himself filed the application for restoration of the suit on 18-12-1976 and as this application under Order 9 filed by Kodu was a civil proceedings, therefore, in view of Section 141, C. P. C, the provisions of Civil Procedure Code are applicable and the present petitioner is competent to file the application and continue the proceedings in the application under Order 9 as well as the suit On merits it was agreed by both the counsel that the order of the Sub-Judge, Una, requires modification to the effect that in proceedings for being impleaded as a legal representative the title to the property is not to be decided. It was further agreed that if the preliminary objection raised by the respondent is held to be not maintainable, then in that case the order of the Sub-Judge should be set aside and the present petitioner may be allowed to take part in the proceedings as legal representative of deceased Kodu, for the purpose of the continuance of the application under Order 9 or the suit and that this impleading of the present petitioner as a legal representative shall not in any manner effect the title of the parties on the basis of the will or the adoption.

7. In view of the above contentions of the learned counsel for the parties, the only point which requires adjudication in the present revision petition is "whether the application for impleading the petitioner as a legal representative of deceased Kodu, in an application under Order 9 is maintain able or not".

8. Section 141 of C. P. C. reads as follows :— "141. Miscellaneous proceedings.—The proc