JUDGMENT

Sulaiman, J. - In a Letters Patent appeal which was disposed of last year two applications have been filed on behalf of the appellants, one praying that the appeal may be declared to have abated as against Baneshwar, deceased respondent, and the other praying that the appeal be restored to its original number and the names of his two sons be brought on the record in the array of the respondents.

2. The suit was brought for ejectment by the plaintiffs against three defendants. Baneshwar was Defendant No. 3 and was not related to the other defendants. The plaintiffs' case was that they were occupancy tenants of the plots: that Defendants Nos. 1 and 2 were their sub-tenants and that Defendant No. 3 was the subtenant of the Defendants sub-tanants. The Court of first instance dismissed the suit, but on appeal the District Judge decreed the claim on the 23rd of December 1921. A second appeal to the High Court was preferred by Baneshwar. Defendant No. 3 and a learned Judge of this Court allowed the appeal and ordered that the memorandum of appeal presented in the Court of the District Judge should be returned to the respondent for presentation to the proper Court. A Letters Patent appeal was filed by the plaintiffs against this order.

3. It is now an admitted fact that Baneshwar, defendant died on the 28th of February 1924 while the appeal was pending, but this fact was not brought to the notice of the Bench hearing the Letters Patent appeal which allowed the appeal and restored the decree of the District. Judge.

4. When the plaintiffs proceeded to execute their decree against the defendants including Baneahwar, an objection was filed by the heirs of Baneshwar on the 5th January 1925, to the effect that Baneshwar having died before the decision of the Letters Patent appeal the decree was not binding on them. The plaintiffs accordingly filed the aforementioned applications in this Court on the 23rd of April 1925. Their allegation is that they became aware of the death of Baneshwar only when objections were filed on the 5th January 1925 and they made further enquiries in the village. On the other hand the allegation on behalf of the opposite party is that the applicants were fully aware of the death of Baneshwar even long before the 5th of January 1925.

5. A preliminary objection to the hearing of these applications is taken that they are barred by time. It is urged that the abatement of the appeal took place on the expiry of 90 days from 28th of February 1924 when Baneshwar died, and that no application for setting aside the abatement having been made within 60 days of the said expiry the present applications are barred by time. On the other hand, the learned vakil for the applicants relies on the case of Gujrati v. Sital Misir AIR 1922 All 209 and urges that it was necessary to pass an order of abatement before the appeal could abate and that inasmuch as no order of abatement has yet been passed time under Article 171 of the Limitation Act has not yet begun to run against them.

6. In the case of Lachmi Narain v. Muhammad Yusuf (1920) 42 All 540 Walsh, J., held; "Whether or not a formal order to that effect is passed a suit or appeal abates automatically when no application is made within time to bring upon the record the representative of a deceased plaintiff or appellant." In a subsequent case the correctness of this decision was doubted by Benerji, J., who referred a similar application for decision to a Bench of two Judges. The decision of the Bench is to be found in Gujrati v. Sital Misir AIR 1922 All 209. The view taken by the Bench (Ryves and Gokul Prasad, JJ.) was that the point was concluded by a former decision of this Court in the Secretary of State v. Jawahir Lal AIR 1914 All 94, which decision in their opinion was correct. The learned Judges then went on to observe that having regard to the language of Order 22, Rule 9(2) it was quite obvious that a suit could not be dismissed automatically and that it seemed to them t