( 1 ) THIS Civil Revision is directed against the order dated 6-5-96 passed by 2nd Civil Judge Class-II, Raipur in Civil Suit no. 119-A/94 whereby the application of the non-applicant/plaintiff under O. 22, R. 3 of the C. P. C. for bringing Legal Representatives of deceased Puroo has been allowed and name of the respondents No. 1. 1 to 1. 4 has been ordered to be substituted in place of deceased/puroo.

( 2 ) THE short question involved for adjudication of this Civil Revision is that whether an application under O. 22, R. 3 of the C. P. C. for substitution, preferred after expiry of 90 days from the date of the death of plaintiff, can be considered and allowed in the absence of an application for setting aside abatement under O. 22, R. 9 of the C. P. C.

( 3 ) LEARNED counsel for the applicant submits that plaintiff Puroo died on 15-5-89 and respondent No. 1. 1 to 1. 4 Legal Representatives filed application for bringing them as legal Representatives of plaintiff on 22-11-89, admittedly, after a period of 90 days of the limitation prescribed for the same; when the suit stood abated.

( 4 ) THE above application was not maintainable in the absence of an application under O. 22, R. 9 of the C. P. C. for setting aside the abatement. Learned Civil Judge could not have considered the application preferred by the Legal Representatives as an application for setting aside abatement.

( 5 ) ON the other hand, learned counsel for the non-applicants submitted that the application for substitution without bringing application for abatement is maintainable and such application may be treated as an application for setting aside abatement and in appropriate cases where the Court is satisfied with the reasons assigned for preferring this application belatedly the Legal representatives can be permitted to be substituted and abatement could be set aside.

( 6 ) RELIANCE is placed in the matter of Shri ram Prasad v. The State Bank of Bikaner and others reported in AIR 1972 All 456 in the matter of M/s. Magharmal and Sons v. National Fertilizers reported in AIR 1988 punj and Har 202 and in the matter of Smt. Kamlesh v. Tekchand and others reported in AIR 2003 All 299.

( 7 ) I have heard learned counsel for the parties. In the matter of Shri Ram Prasad (AIR 1972 All 456) (supra), it is held thus :

"learned counsel for the applicant has next contended that the application purports to be under O. 22, R. 4 and not under O. 22, R. 9, C. P. C. and in the absence of a prayer for setting aside the abatement the application under O. 22, R. 4, C. P. C. was not maintainable. The argument of the learned counsel for the applicant is fallacious. If there had been no abatement there could be no question of setting aside the abatement. Moreover, in a case where an applicant applies for condoning the delay and for bringing on record the Legal Representatives, a prayer of setting aside the abatement is implicit in the prayer for substitution. "

( 8 ) IN the matter of M/s. Maghar Mal and sons of Coal Depot Holder (AIR 1988 (P and H) 202) (supra), in para 5 it has been held thus :

"it is clear that in case a suit does not abate and an application for impleading the legal Representatives of the deceased-plaintiff is made, the Court in case it is disputed that the persons sought to be impleaded are the Legal Representatives of the deceased, shall determine first that question and if they are found to be so, they shall be impleaded as plaintiffs. If the suit has abated in that case an application for setting aside abatement should be made. On that application, the Court in addition to finding out as to whether the applicants are the Legal Representatives of the deceased shall also determine whether there are sufficient grounds to set aside the abatement. If the Court determines both the questions in favour of the applicant, the abatement shall be set aside and the Legal Representatives will be impleaded as plaintiffs in place of the deceased. However, if either of the question

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