JUDGMENT 1. This parports to be an application to set aside an order of abatement. It appears that one of the respondents died in Marsh 1921 and an application was pat in by the learned Vakil for the appellant after ninety days had expired. The learned Vakil in the application stated that the appeal as against the deceased respondent bad abated and he applied for an order under Order XXII, Rule 9 25 Ind. Cas. 48 : 12 A. L. J. 299 : 36 A 235. The matter same before a learned Judge of this Court who was of opinion that the application was premature, inasmuch as there was no order of the Court declaring the appeal to have abated As, however, a learned Judge of this Court in Lichmi Narain v. Muhammad Yusuf 59 Ind. Cas. 903 : 18 A. L. J. 688 : 42 A. 510. was of opinion that on the expiry of ninety days after the death of a respondent, if no application was made within ninety days to bring his representatives on to the record, the appeal automatioally abated and it was not necessary that a formal order should have been passed to that effect before an application under Order XXII, Rule 9 25 Ind. Cas. 48 : 12 A. L. J. 299 : 36 A 235., could be made. As the learned Judge before whom this application first came doubted the correctness of the ruling, the matter was referred to two Judges and comes before us. It seems to us that the point is concluded by Secretary of State for Indict v. Jwahir Lal 25 Ind. Cas. 48 : 12 A. L. J. 299 : 36 A 235. and we think that that decision was correct. In Order XXII, Rule 9 25 Ind. Cas. 48 : 12 A. L. J. 299 : 36 A 235. it is stated that the plaintiff may apply for an order to set aside the abatement or dismissal. It is quite obvious that a suit cannot be dismissed automatically. It seams to us, therefore, that a formal order declaring that a suit or an appeal has abated, is necessary before an application under this rule can be entertained, We, therefore, dismiss this application and order the appeal to be put up in the ordinary course. It is quite obvious that a suit cannot be dismissed automatically. It seams to us, therefore, that a formal order declaring that a suit or an appeal has abated, is necessary before an application under this rule can be entertained, We, therefore, dismiss this application and order the appeal to be put up in the ordinary course. In order to save time, we direst that the appeal be put up to morrow before us for orders.