JUDGMENT

M.M. Gopal, Member - This is a revision against the judgment of the trial court dated February 17, 1982 by which it allowed the substitution application. The learned Additional Commissioner by his order dated April 5, 1983 recommended that the revision be dismissed.

2. Heard the learned counsels and perused the file.

3. The facts of the case are that Ramji Prasad (father of Nand Kishore etc.) filed a suit against Dinanath and others. Written statement were filed by Ram Pravesh, Lalji and Shri Shiv Kunwar.

A substitution application was filed by Nand Kishore on February 13, 1981. An objection was filed by Ram Pravesh on December 21, 1981 on the allegation that the suit abated and the substitution application is time barred and it should not be allowed.

4. On February 17, 1982 the trial court allowed the substitution application after considering the points raised by both the parties. The benefit of Section 5 was given and the substitution was allowed.

5. The learned counsel has contended that the provisions of order 22 Rules 4 and 9 of the C.P.C. have not been followed and the knowledge of death was admitted hence there was no question of allowing the time barred substitution application.

The learned counsel for the other side has contended that when the substitution was allowed the abatement is set aside. Hence the main question in this case is whether separate order or prayer for setting aside abatement order is required or not.

6. Both sides have cited rulings in support of their contentions.

The Full Bench case is Mahendra Kaur v. Hafiz Khalil and others 1983 A.C.J. 513, in which it has been held that provision of Order I Rule 10 C.P.C. will not be applicable in a case of substitution proceeding and Order 22 Rule 4 and Section 5 of the Limitation Act will be applicable. In the case one application was for condonation of delay and another application for setting aside the abatement was filed. Thus the point decided in this ruling was that the Order 1 Rule 10(2) will not be applicable in substitution or abatement proceedings; but this is not the point in issue in the present case.

The other ruling is Prem Narain and others v. Ganga Ram and others 1982 A.W.C. 675 wherein it has been held that the substitution application cannot be treated as the application for setting aside the abatement when there was no prayer for condonation of delay. In this case only the substitution application was filed and there was no application for condoning the delay. This point is also not in issue in the present case.

Hence these two rulings are on different points.

7. The main point to be decided in this case is that whether a separate application for setting aside the abatement order is required or not. There is no doubt that if the substitution application is not moved within time the abatement takes place automatically. No specific order is required.

When a substitution application alongwith an application for condoning the delay has been filed, it shall be presumed that the condonation of delay for filing the substitution application in a way will mean that the abatement is to be set aside accordingly.

In Sri Ram Prasad v. State Bank of Bikaner and others, A.I.R. 1972 Alld. 456 it has been held that in a case where an applicant applies for condoning the delay and for bringing on record the legal representative, a prayer for setting aside the abatement is implicit in the prayer for substitution.

Hence in the present case the argument that there was no application for setting aside the abatement is not tenable; and it is implicit. Only this ground was raised before this court and in may opinion there is no substance in it.

8. I therefore hold that when a substitution application alongwith the condonation of delay application has been filed it impliedly means that the prayer for setting aside the abatement is also made.

When the application for substitution was allowed after condoning the delay the abatement automatically vanishes as t