The court has the power to condone delay in the substitution of the legal representatives of a deceased party in a suit if the delay is not caused by the negligence or inaction of the party seeking substitution.

S. C. MOHAPATRA, J.

( 1 ) PLAINTIFF is petitioner in this civil revision against an order refusing the prayer to substitute the legal representatives of deceased defendant No. 11.

( 2 ) WHEN the suit for partition was dismissed, plaintiff filed First Appeal No. 39 of 1975 in this Court making defendant No. 11 a respondent therein. When notice of the appeal was sent, process server reported that defendant No. 11 had died. Accordingly, plaintiff filed an application for substitution of the legal representatives of defendant No. 11 with a petition for setting aside abatement asserting that although defendant No. 11 died on 8-12-1974, she came to know about the same on 30/10/1975 after making inquiry on getting information from her Advocate at Cuttack that the process server had reported about the death of defendant No. 11. Since the death was in the trial court, this Court observed that the petition for substitution did not lie in appeal. It was directed that the effect of non-substitution would be considered at the time of hearing. At another stage, this Court held that the appeal had abated as against defendant No. 11 and the effect of such abatement would be considered at the time of hearing. When the First Appeal was being heard, it was found that evidence of both the parties was closed on 5-12-1974 and arguments of the suit were heard on 10-12-1974 and 16-12-1974 and judgement was delivered on 23-12-1974 against which the said First Appeal (First Appeal No. 39 of 1975) was filed. Accordingly, this Court set aside the judgement since the legal representatives of defendant No. 11 were not heard. Relevant portion of the judgement in First Appeal No. 39 of 1975 is as follows :"since the death of respondent No. 11 took place during the pendency of the suit in the trial court and the suit was disposed of within ninety days from the date of death of deceased defendant No. 11 (respondent No. 11) it cannot be said that the suit had abated as against the deceased defendant. xx xx even though the decree passed by the trial court cannot be said to be nullity as the period necessary for substitution had not elapsed before the suit was disposed of, still the said decree cannot be finding against the legal representatives of respondent No. 11 who have got the right of being heard in the suit itself. "after the suit was remitted back, plaintiff filed an application for substitution of the legal representatives of deceased defendant No, 11. The same has been rejected on the ground of delay which is grievance of the petitioner.

( 3 ) UNDER Order 22, Rule 6, C. P. C. , there shall be no abatement where a party died after conclusion of hearing and before pronouncement of the judgement and notwithstanding the death, the decree shall have the same force and effect as if it had been pronounced before the death took place. This has possibly influenced this Court to hold that there was no abatement of the suit. Even if there would be no abatement of the suit, while preferring an appeal, the legal representatives of the party who died before the decree was made, should be made respondents. If such legal representatives had not been made parties to any subsequent proceeding, person preferring the appeal may enter their names as respondents in the memorandum of appeal, on presentation of an affidavit showing that he did not know before the decree was made that such party had died or that he had no reasonable opportunity of informing the court before such decree or order was made that such party was dead. Rule 4 of Chapter VII of the Rules of the High Court of Orissa which is to the aforesaid effect, reads as follows :"4. A party to a decree or order desiring to appeal therefrom and to make the legal representative of a party who died before the decree or order was made a respondent may, if such legal representative has not been made a party to any subsequent proceedings under such decree or order, enter his name as a respondent in the memorandum of a