JUDGMENT

A. S. NAIDU, J. : This Writ Petition has been filed chal¬lenging the order dated 20.1.2004 passed by the learned Civil Judge (JD), Jaleswar in Original Suit No.917 of 1994 refusing to condone the petition delay and rejecting the petitions for set¬ting aside abatement and substitution.

2. It appears that the petitioner was the plaintiff in the aforesaid Original Suit which was one for declaration of right, title and interest in respect of the disputed property. During pendency of the suit on 15th of February, 1999 the sole of defendant died leaving behind him his legal representatives. A Memo was thereafter filed under Order 22, Rule 9 CPC by the counsel for the said defendant intimating the Court about the fact of death. But then no steps were taken by the plaintiff-petitioner to substitute the deceased sole defendant. As a conse¬quence, by order dated 20.9.2000 the Court below observing that no steps had been taken for substitution of the deceased sole defendant, dismissed the suit as abated. Thereafter a petition was filed by the petitioner for substitution, but the same was rejected.

3. On 19.8.2002 once again three petitions were filed by the petitioner, one under Order 22, Rule 4 CPC for substitution, the second under Order 22, Rule 9 CPC for setting aside abatement and third under Section 5 of the Limitation Act for condoning the delay in filing the other two petitions. All the three petitions were taken up together for hearing by the Court below and by the impugned order dated 20.1.2004, relying upon the decision of this Court in the case of Bipin Bihari v. Rajendra Kumar, report¬ed in 2001 (II) OLR 214, all the three petitions were dismissed. Being aggrieved, the petitioner has approached this Court.

4. Mr. Baug, learned counsel for the petitioner, submitted that not entertaining the subsequent petition filed by the petitioner for substitution in place of the deceased sole defen¬dant ought not to have been dismissed or refused. Not entertain¬ing the said petition amounted to taking a hyper-technical view and the Court below ought to have been liberal in considering the said petition. This submission of Mr. Baug was advanced relying upon the decision of the Supreme Court in the case of K. Rudrappa v. Shivappa, reported in AIR 2004 SC 4346.

5. The submissions of Mr. Baug were strongly repudiated by Mr. Routray, learned counsel for the opposite parties who are the legal representatives of the deceased defendant. According to Mr. Routray, dismissal of a suit due to abatement amounts to a decree and, as such, an appeal lies. Therefore this Court may not entertain the Writ Petition. He further submitted that there was a delay of three years in filing the petitions for substitution, setting aside abatement. No evidence either oral or documentary had been adduced by the petitioner to explain the delay. Thus the petitioner had totally failed to satisfy the Court that there was any reason, much less sufficient reasons, for condoning the delay and thus the Court below has rightly rejected the petitions filed before it.

6. I have heard learned counsel for the parties at length and perused the materials available on record. Fact remains, soon after the death of the sole defendant which took place on 15.2.1999, a Memo. was filed under Order 22, Rule 9 CPC before the Court below by the counsel for the deceased defendant inti¬mating the said death. But then no steps were taken by the peti¬tioner for substitution in place of the defendant till 20.9.2000 when the Court below dismissed the suit on the ground that for non-substitution of the deceased defendant the suit had abated. Even otherwise, abatement of a suit when the sole defendant dies and steps for substitution are not taken in time prescribed, is automatic. It appears that a petition for substitution had been filed, but the same was dismissed. Thereafter three applications, as aforesaid, were filed after lapse of three years.

7. Without discussing as to whether an appe