An application for substitution of legal representatives must be made within 90 days of the date of death. An application for setting aside abatement can be made within 90 days of the date of abatement.

R.R. Rastogi, J.

1. This is an application in revision under section 115 of the Code of Civil Procedure. The brief facts are these. Ganga Ram and twenty other persons filed a suit for declaration and injunction. During the pendency of the suit Paras Ram plaintiff no. 2, died on 6-10-1971 and Triveni, plaintiff no. 18, died on 4-9-1971. No application was given for substitution of their heirs and legal representatives within the period of 90 days. However, within five months of the date of death of Triveni an application was given for substitution in which in regard to Paras Ram it was stated that he had left behind him his brothers Kandarp Narain and Udai Narain as his heirs and legal representatives and they were already parties to the suit. Apart from that it was also alleged that Paras Ram had made a gift of his properties in their favour. So far as Triveni was concerned, substitution of his legal representatives was prayed for. In this application, however, the dates of death of these two persons were not mentioned.

2. The trial court after recording the evidence given by the parties held that Paras Ram had died on 6-10-1971 and Triveni on 4-9-1971 and being of the view that since an application for substitution of legal representatives had not been made within 90 days of the death nor any application had been given for setting aside the abatement this application was not maintainable and the suit abated as a whole, ordered accordingly.

Aggrieved, the plaintiffs filed an appeal. The learned appellate court has taken the view that the application for substitution had been given within five months of the death of the aforesaid two plaintiffs and it should have been treated as an application for setting aside abatement and the trial court should have allowed it. In the result, the appeal has been allowed, the order of abatement has been set aside and the trial court has been directed to proceed to decide the case on merit. The defendants have now come up to this Court by way of this application to revise that order.

3. It is not in dispute that Paras Ram, plaintiff no. 2, died on 6-10-1971. He left behind him his two brothers only as his legal representatives. It is claimed that he had also made a gift of his properties in their favour. Therefore, in his case it was only a matter of giving a formal application for deleting the name of Paras Ram. The suit could not have abated in so far as he was concerned. As for Triveni, he died on 4-9-1971. An application for substitution of his legal representatives should have been given within 90 days of the date of death. No such application was given and hence the suit in so far as Triveni was concerned abated. Now, an application under Order 22 Rule 9 (2) CPC could have been given by the legal representatives for setting aside the abatement. Such an application could have been given within 90 days of the date of abatement under Article 121 of the Limitation Act. The application given for substitution of his legal representatives could not have been on the facts of the case treated as an application for setting aside the abatement. The view taken by the appellate court, therefore, to the contrary is erroneous in law. In this behalf my attention has been invited by the counsel for the defendant applicants to a decision of the Madhya Pradesh High Court in Kundanmal v. Jwala Prasad, AIR 1963 M.P. 183. IT has been laid down in that case that a suit or appeal abates automatically if no application is made for substitution within the prescribed period. The application to bring the legal representatives of the deceased defendant on the record made after 90 days of his death may be treated as an application to set aside the abatement, but where the plaintiff did not state the precised date on which the defendant died, nor did he pray for extension of time under section 5 of the Limitation Act for making the application for setting aside the abatement of the suit, the application for br