A combined reading of the several provisions of Order 22 of the Code makesthe following position clear:(a)When the sole plaintiff

dies and the right to sue survives, on anapplication made in that behalf, the court shall cause the legal representativeof the deceased plaintiff to be brought on record and proceed with the suit.(b)If the court holds that the right to sue does not survive on the death of the plaintiff, the suit will abate under Rule 1 of Order 22 of the Code.(c)Even where the right to sue survives, if no application is made for making the legal representative a party to the suit, within the time limited bylaw (that is a period of 90 days from the date of death of the plaintiff prescribed for making an application to make the legal representative a partyunder Article 120 of the Limitation Act, 1963), the suit abates, as per Rule3(2) of Order 22 of the Code.(d)Abatement occurs as a legal consequence of (i) court holding that theright to sue does not survive; or (ii) no application being made by any legalrepresentative of the deceased plaintiff to come on record and continue thesuit. Abatement is not dependant upon any formal order of the court that thesuit has abated. 6

(e)Even though a formal order declaring the abatement is not necessarywhen the suit abates, as the proceedings in the suit are likely to linger andwill not be closed without a formal order of the court, the court is usually tomake an order recording that the suit has abated, or dismiss the suit byreason of abatement under Order 22 of the Code.(f)Where

a suit abates or where the suit is dismissed, any personclaiming to be the legal representative of the deceased plaintiff may applyfor setting aside the abatement or dismissal of the suit under Order 22 Rule 9(2) of the Code. If sufficient cause is shown, the court will set aside theabatement or dismissal. If however such application is dismissed, the order dismissing such an application is open to challenge in an appeal under Order 43 Rule 1(k) of the Code.(g)A person claiming to be the legal representative cannot make anapplication under rule 9(2) of order 22 for setting aside the abatement or dismissal, if he had already applied under order 22 Rule 3 for being

broughton record within time and his application had been dismissed after anenquiry under Rule 5 of Order 22, on the ground that he is not the legalrepresentative.6.We may next consider the remedies available to an applicant whoseapplication under Order 22 Rule 3 of the Code, for being added as a party tothe suit as legal representative of the deceased plaintiff, has been rejected.The normal remedies available under the Code whenever a civil court makesan order under the Code are as under Where the order is a decree as defined under section 2(2) of theCode, an appeal would lie under section 96 of the Code (with a provision for a second appeal under section 100 of the Code).(ii)When the order is not a decree, but is an order which is oneamong those enumerated in section 104 or Rule 1 of Order 43, anappeal would lie under section 104 or under section 104 read withorder 43, Rule 1 of the Code (without any provision for a in secondappeal).(iii)If the order is neither a decree, nor an appealable orderenumerated

section 104 or Order 43 Rule 1, a revision would lieunder section 115 of the Code, if it satisfies the requirements of that section.When a party is aggrieved by any decree or order, he can also seek review as provided in Section 114 subject to fulfillment of the conditions contained inthat section and Order 47 Rule 1 of the Code. Be that as it may. Thedifference between a decree appealable under section 96 and an orderappealable under section 104 is that a second appeal

is available in respect of decrees in first appeals under section 96, whereas no further appeal lies froman order in an appeal under section 104 and Order 43, Rule 1 of the Code.The question for consideration in this case is whether the order dated31.8.1996 of the trial court dismissing an application under Order 22 Rule 3 8

and consequently dismissing the suit is an order amenable to the remedy of appeal or revision. If the remedy is by way of appeal, the incidental questionwould be whether it is under section 96, or under section 104 read withOrder 43, Rule 1 of the Code. Noappeal is provided against an order under Order 22 Rule 3 and 5 of the Code,either under section 104 or Order 43 Rule 1 of the Code. Clause (k) of Rule1 of Order 43 of the Code however provides that an appeal shall lie under Section 104 of the Code, from an order under Rule 9 of Order 22 refusing toset aside the abatement or dismissal of a suit. Sub-Rule (2) of Rule 9 of Order 22 permits a legal representative of a deceased plaintiff to apply for an

order to set aside the abatement or dismissal under Order 22 of the Code. Anorder under Rule 9(2) refusing to set aside an abatement or dismissal of thesuit is contemplated, only where there is abatement or dismissal under order 22 and an application has been made by a legal representative to set asidesuch abatement or dismissal. But where a person claiming to be the legalrepresentative had already filed an application under Order 22 Rule 3 withinthe period of limitation, and such application has been dismissed on theground that he is not a legal representative, there is no question of suchapplicant under Order 22 Rule 3, filing an application under Rule 9(2) for setting aside the abatement or dismissal. An application under Rule 9(2) can be filed only if there is abatement or dismissal under Order 22 on account of no application being made. Therefore when an order is

passed under Order 22 Rules 3 and 5 of the Code, dismissing an application by a personclaiming to be a legal representative on the ground that he is not a legalrepresentative and consequently

dismissing the suit, it will not be a dismissalunder Rule 9(2) of Order 22 which is amenable for an appeal under section104 read with Order 43 Rule 1(k) of the Code. It therefore follows that anorder under Order 22 Rule 3 and 5 is not appealable under section 104 or Order 43 Rule 1 of the Code . It is also relevant to extract Articles 120 and 121 of the Limitation Act, 1963. __________________________________________________________________ Description of suit Application Period of Limitation Time from which period begins to run __________________________________________________________________ 120. Under the Code of Civil Procedure, 1908, (5 of 1908) to have the legal representative of a deceased plaintiff or appellant or of a deceased defendant or respondent made a party. Ninety days The date of death of the plaintiff, appellant, defendant or respondent as the case may be. 121. Under the same Code for an order to set aside an abatement- Sixty days The date of abatement. __________________________________________________________________ 8. Rule 4 of Order XXII of CPC states that where the plaintiff was ignorant of the death of a defendant and could not for that reason make an application for substitution of the legal representatives of the deceased defendant within the period specified in the Limitation Act, the suit stands abated. The said Rule also states that if the plaintiff applies for setting aside the abatement after expiry of the period of limitation, he has to file an application under Section 5 of the Limitation Act on the ground that he had, by reason of ignorance, could not make the application within time and the Court shall, in consideration of such application, have due regard to the fact of such ignorance, if proved. Article 120 of the Limitation Act, 1963 stipulates that an application to have the legal representative of a deceased plaintiff or appellant or defendant or respondent shall be filed within ninety (90) days from the date of death of the said party. As already stated above, if an application to being the legal representatives of a deceased party is not

filed within the period stipulated, the suit stands abated as against the party who died as per Rule 4(3) of Order XXII of CPC. Under Article 121 of the Limitation Act, an application to set aside the order of abatement shall be filed within sixty days from the date of abatement. In the instant case, the fact that the 1st defendant died on 5-5-1998 came to light when the summons sent to him were returned on 26-3-1999, Therefore, the application for setting aside the abatement has to be filed by the petitioner within 150 (90 + 60) days of the date of death of the 1st defendant, as per the said Articles 120 and 121 of the Limitation Act. As the petitioner failed to file the applications within the above stipulated time and without the petition under Section 5 of the Limitation Act, though insisted to be filed by the Office of the lower Court, the Court below rejected the petitions as barred by limitation. 10. Admittedly, in the case on hand, even after the return of the petitions asking the petitionerplaintiff to file an application under Section 5 of the Limitation Act, the same was represented without making any application as required under Section 5 of the Limitation Act. On the other hand, it was submitted that there was no necessity to file such an application. A bare look at Clause (5) of Order XXII, Rule 4, CPC makes it clear that the application under Section 5 of the Limitation Act is necessary even if there is ignorance and it is a sufficient cause for condoning the delay. But, filing of an application under Section 5 of the Limitation Act is mandatory and thereafter, the Court will examine whether the cause shown for the delay is sufficient or not. Under those circumstances, the Court below has rightly observed that under Order XXII, Rule 4 of CPC the petitioner-plaintiff may apply for setting aside the abatement order within the period of limitation and if the period of limitation is over, he can even file an application under Section 5 of the Limitation Act for condoning the delay. From the above discussion, this Court is of the view that the limitation for a petition to bring the legal representatives of a deceased party on record runs from the date of death of such party. However, if a petition to bring the legal representatives on record is not filed within a period of 90 days as prescribed under Article 120 of the Limitation Act, the suit stands abated automatically as against, the deceased defendant. Thereafter, the plaintiff has to file the application for setting aside the abatement within 60 days from the date of abatement, as per Article 121 of the Limitation Act. If the applications for abatement and to implead the legal representatives are filed thereafter, i.e. after 150 days (90 + 60), the plaintiff can very well file a

petition under Section 5 of the Limitation Act and plead for the ignorance of the fact of death of the defendant. The Court may examine the merits of that petition and may condone the delay in filing the petitions for abatement and impleadment and then proceed with the suit. But, if no petition for condoning the delay as required under Section 5 of the Limitation Act is filed, the Court can very well reject the applications for abatement and impleadment. In fact, it is not the date of knowledge that is important, it is the date of death of a party, which is, important and from that date the limitation runs. In the case on hand, it is for the petitioner to prove that he was ignorant and came to know of the death of the 1st defendant only on 25-6-1999 and pray the Court to condone the delay. But, without there being a petition under Section 5 of the Limitation Act, the abatement cannot be set aside and the legal representatives of the deceased party cannot be brought on record. This view of mine is fortified by the following decisions : (i) Punjab State v. Kabul Singh, and (ii) S.R. Gaitonde v. J.J. Fonseca, AIR 1976 Goa 11. The words sufficient cause for not making the application within the period of limitation should be understood and applied in a reasonable, pragmatic, practical and liberal manner, depending upon the facts and circumstances of the case, and the type of case. The words sufficient cause in Section 5 of Limitation Act should receive a liberal construction so as to advance substantial justice, when the delay is not on account of any dilatory tactics, want of bona fides, deliberate inaction or negligence on the part of the appellant.