ORDER :- This is a defendants revision against the order of the learned 1st Additional District Judge, Allahabad ordering for her appeal to be abated as a whole.

2. The material facts giving rise to this revision are that the applicant filed a First Appeal in this Court against the plaintiffs including one Banwari Lal who figured as a respondent. During the pendency of the appeal in this Court, Banwari Lal died. On the 9th of July. 1962 application No. 35A was moved by the applicant mentioning that Banwari Lal had died in the first week of April, 1962 and praying for substitution of his widow in his place. The application was supported by an affidavit. Notice was served on the respondents in the appeal and objection was filed on the 15th of July, 1963 in the form of an affidavit stating that the appeal had abated since Banwari Lal had died on the 5th of February, 1962. Along with the affidavit, a certificate of the Pradhan of the Gaon Sabha concerned was also filed showing that. Banwari Lal had died on the 5th of February, 1962 and not in the first week of April, 1962 as claimed by the applicant. It was on the 9th of July, 1962 that this Court had re-opened after the summer vacations. By an order dated 6-3-1962, B. D. Gupta, J. dismissed the application dated 9th July 1962 as having been made beyond time. The learned Judge ordered that the appeal had abated against respondent No. 1 in the appeal. It was directed that the order of abatement will be brought to the notice of the Bench hearing the appeal. Subsequently B. D. Gupta, J. recalled his order dated 6th March, 1964 on the 17th of April, 1964. On the 18th of March, 1964, the applicant, who was appellant in the appeal, filed application 31-A praying for setting aside the abatement of the appeal. This application was also accompanied by an affidavit. It does not appear from the record that any counter-affidavit was filed. The appeal was subsequently transferred to the court of the learned 1st Additional District Judge, Allahabad as a result of coming into force of the U. P. Civil Laws (Amendment) Act, 1970. When the appeal came up for hearing before the learned 1st Additional District Judge, Allahabad, he took the view that the appellant had no excuse whatsoever for not filing an application for setting aside the automatic abatement of the appeal against Banwari Lal after the 15th of July, 1963 when a counter-affidavit was filed along with a certificate showing that Banwari Lal had died on the 5th of February, 1962. The learned Judge further held that limitation had expired long back and no application under S. 5 Limitation Act had been made for condoning the delay. In this view of the matter, the learned Judge held that the application dated 18th of March, 1964 for setting aside the abatement could not be allowed.

3. It appears that on behalf of the applicant reliance was placed on the decision of this Court in Lachmi Narain v. Muhammad Yusuf, (AIR 1920 All 284) for the contention that the application for substitution dated July, 1962 should be treated as an application for setting aside the abatement. The reference of that case seems to have been wrongly cited in the judgment of the court below. The decision was distinguished by the learned Additional District Judge on the ground that the application dated 9th July, 1962 made by the applicant gave no indication that it should be treated as an application for setting aside abatement. A further reason given by the 1st Additional District Judge for distinguishing the decision of this Court in Lachmi Narain v. Mohd. Yusuf (supra) is that the fact that the applicant had no intention to treat the application dated the 9th July, 1962 as an application for setting aside the abatement was made manifest by the fact that she herself had applied on 18th of March, 1964 by means of an application for setting aside the abatement. The learned 1st Additional District Judge held that the appeal should consequently be treated as having abated

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