Abatement of suit under Order 22, Rule 4, C. P. C. occurs when a plaintiff fails to bring the heirs and legal representatives of a deceased defendant on record within the prescribed limitation period, resulting in the termination of the suit against the deceased defendant and potentially the entire suit.

( 1 ) BY this application in revision under Section 115 of the Code of Civil Procedure the defendants claim that the order dated 30-11-1979, passed by the Munsif, Jaunpur refusing to declare that the suit giving rise to this revision has abated, be set aside.

( 2 ) BABU Nandan Singh filed a suit against Udit Singh, Girja Shunker Singh, Ganga Pd. Singh, sankatha Singh and Ravindra Prasad Singh for a mandatory injunction directing them to demolish a wall marked by letters Ta-tha, and ta-ja shown in the plaint map.

( 3 ) DURING the pendency of the suit, defendant Udit Singh died in the year 1970, The heirs of the plaintiff Babu Nandan Singh, who too had died during the pendency of the suit, made an application, No. 103 Ka, in the year, 1977 stating that Udit Singh was dead and that his heirs and legal representatives were already on the record and prayed that a note be made accordingly. The defendants claim that Udit Singh had, apart from his sons who are defendants Nos. 3 to 5 left his widow and daughters also as his legal representatives. As the plaintiffs did not take steps to bring their names on record, the suit had abated and prayed that necessary declaration to that affect may be made. They also urged that in the circumstances, the application, paper No. 103 Ka, deserves to be rejected.

( 4 ) AFTER hearing counsel for the parries, the trial court observed that the record showed that the names of the heirs of Ganga Singh had been brought on the record long time back. In this view, no question of abatement of the suit arose. In the result, it allowed the prayer made in application, paper No. 103 Ka and rejected the defendants request for declaring the suit to have abated. Being aggrieved, the defendants have approached this Court for relief under Section 115 of the Code of Civil Procedure.

( 5 ) THE order passed by the learned Munsif discloses that he has passed the order under some misapprehension of facts. In the first place the controversy between the parties was about the effect of death of Udit Singh and not about the death of Ganga Singh. Further the case of the plaintiffs was not that the names of the heirs either of Udit Singh or those of Ganga Singh had been brought on the record. His case was that the heirs of deceased Udit Singh were already on record as defendants Nos. 3 to 5. Be that as it may, it is not disputed that the plaintiffs did not move any application for bringing the names of the legal representatives of Udit Singh on the record. The only controversy is as to whether in the absence of any such application, the suit against Udit Singh abates and if so what is the effect of such abatement on the entire suit.

( 6 ) COPY of the plaint has been placed before me and its perusal shows that according to the plaintiffs the defendant i. e. Udit Singh, his three sons (defendants Nos. 3 to 5) and one Girja shanker Singh had constructed the disputed walls on a piece of land which belorged to him. The plaintiff, accordingly, prayed that a mandatory injunction be granted directing the defendants to demolish the said wall. It is clear that the right of the plaintiff to claim relief in respect of the said wall did not come to an end with the death of Udit Singh. He could, after the death of Udit singh, claim that all his heirs and legal representatives should by a mandatory injunction be required to demolish the wall constructed by Udit Singh. It was thus a case where after the death of Udit Singh, the right to continue the suit survived but then it did not survive against the surviving defendants, three of whom happened to be the sons of Udit Singh, alone. According to order 22, Rule 4 C. P. C. where one of the two or more defendants dies and the right to sue does not survive against the surviving defendants alone, the plaintiff has to move an application for getting the names of his heirs and legal representative on record. The Rule further lays down that if no such application is made within the peri