JUDGMENT Lodge, J. - The material facts giving rise to this Rule are as follows: One Prafulla Chandra Chaudhury brought an action in ejectment under sec. 25A of the Bengal Tenancy Act against 14 persons. Defendants Nos. 1 to 11 were the principal Defendants and Defendants Nos. 12 to 14 were pro forma Defendants. Summons was served upon all the Defendants. Defendants Nos. 5 to 11 filed written statement; the remaining, Defendants did not appear and contest. The suit was decreed on the 12th December, 1944. On the 2nd March, 1945, Defendants Nos. 5 to 11 presented an appeal against that decree. Notice of the appeal was issued and when the returns of service were received, it was found that the serving peon had reported that Respondent No. 4, who was Defendant No. 3 in the original suit, was dead. On the 7th.May 1945, the Appellants made an application for substitution of the heirs of the deceased Respondent, hut in that application did not give any date as the date of death. They were required to furnish the date of death. Thereupon they made an application supported by an affidavit that Respondent No. 4 had died on the 25th October, 1943, that is to say. after the suit was instituted but before it was decreed. Thereupon the Plaintiff-Respondent No. 1 applied to the Appellate Court under Or. 22, r. 9 to set aside the abatement of the suit. 2. The learned District Judge in the Court of Appeal below heard the parties and. came to the conclusion that Plaintiff-Respondent No. 1 had no knowledge of the death of Defendant No. 3 before the affidavit of the 1st June. 1945. consequently he was prevented by sufficient cause from applying for substitution of the heirs of Defendant No. 3 in the Court of first instance. The learned District Judge. therefore, ordered under. Or. 22, r. 9 that the abatement be set aside. 3. The Defendant-Appellants in the Court of Appeal below obtained this Rule. It is argued on behalf of the Petitioners that the Court of Appeal below had no jurisdiction to set aside the abatement of the suit, that it was only the Court of first instance that had jurisdiction to set aside abatement of the suit and that a Court of Appeal's jurisdiction only extended as far as setting aside abatement of the appeal. My attention was drawn to the language of Or, 22. r. 9 (2) and Or. 22, r. 11. Or. 22, r. 9 (2) reads as follows: The Plaintiff or the person claiming to be the legal representative of a deceased Plaintiff or the assignee or the receiver in the case of an insolvent Plaintiff may apply for an order to set aside the abatement or dismissal; and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. 4. Or. 22, r. 11 reads as follows: In the application of this Order to appeal, so far as may be, the word Plaintiff " shall be held to include an Appellant, the word Defendant' a Respondent, and the word suit' an appeal. 5. It was argued that under Or. 22, r. 9 (2) it is only the Court of first instance that can set aside the abatement of the suit and that the Court referred to in that rule is necessarily the Court of first instance. It is obvious that ordinarily speaking the Court referred to in Or. 22, r. 9 (2) is the Court of first instance. The question whether it is always necessarily the Court of first instance is the question to be decided by me. 6. It was argued that under Or. 22. r. 11 in the case of an appeal Or. 22, r. 9 (2) shall be read as though the word ""Appellant " were substituted for the word " Plaintiff " and the word " Respondent " substituted for the word " Defendant" and the word " appeal" substituted for the word ".suit"; and if this were done the only party entitled to apply to set aside abatement in the Court of Appeal was the Appellant, and consequently, that the Respondent-Plaintiff in the present suit had no right under Or. 22, r. 11 to move the Court to set aside the abatement. In the first place, it is clear that Or. 22, r. 11 docs not provide that for the word " Plaintiff " the word " Appellant" should be substituted, etc. Dr. Sen Gupta has pointed out that what it does provide is that the word " Plaintiff " shall be held to include an Appellant. In the first place, it is clear that Or. 22, r. 11 docs not provide that for the word " Plaintiff " the word " Appellant" should be substituted, etc. Dr. Sen Gupta has pointed out that what it does provide is that the word " Plaintiff " shall be held to include an Appellant. This does not exclude the possibility that the Plaintiff may still move the Court even though not an Appellant. It is clear in the present case on the findings of the Court of Appeal below that Defendant No. 3 died after the suit was instituted and before the suit was decreed. It is also clear that the Plaintiff had no knowledge of this death until after an appeal had been preferred against the decree by the contesting Defendants. It is, therefore, obvious that the Plaintiff was prevented by sufficient cause from continuing the suit in the Court of first instance. It is also clear that he was prevented by sufficient cause from applying to the Court of first instance to set aside the abatement while the suit was pending in the Court of first instance. It is also clear that he was not entitled under the law to move the Court of first instance in review of judgment in order to have the abatement set aside, because by the time he came to know of the death of Defendant No. 3 an appeal had already been filed. It seems to me clear, therefore, that the application to set aside the abatement could not be made to the Court of first instance. It had to be made to the Court of Appeal below. It was the only Court having jurisdiction in the matter at the time when the death of Defendant No. 3 came to the knowledge of the Plaintiff. 7. My attention has been drawn to a ruling of the Bombay High Court reported in Amarsangji Indrasangji Vs. Desai Umed, AIR 1925 Bom 290 . In that case it was apparently held in circumstances similar to the present that a Court of Appeal had no power to set aside abatement and add the legal representative of the deceased Defendant; the proper Court to deal with the matter is the Court of first instance. Desai Umed, AIR 1925 Bom 290 . In that case it was apparently held in circumstances similar to the present that a Court of Appeal had no power to set aside abatement and add the legal representative of the deceased Defendant; the proper Court to deal with the matter is the Court of first instance. The only Calcutta case to which my attention was drawn was the case of Abdul Aziz v. Lakhmi Chandra Majumdar ( (1922) 37 C. L. J. 494. In that case the death of the party occurred during the pendency of an appeal before this Court and there was no question of the case going to a higher Court. There is nothing in this decision to show whether a higher Court would or would not have jurisdiction to deal with an application for substitution. This decision, in my opinion, is of no assistance in the present case. The only ruling, therefore, cited before, me which is of any assistance, is the Bombay ruling referred to above, but that ruling does not state that the application could not be made to the Court of Appeal. It merely says that it shall not be disposed of by the Court of Appeal. With due respect to the learned Judges who decided that case, I am not satisfied that the decision in the present case of the learned District Judge was wrong. It seems to me clear that the Court of first instance had at the time no jurisdiction to entertain an application under Or. 22, r. 9 (2) and the Court of Appeal was the only Court entitled to entertain such an application. There is nothing in the actual wording of r. 9 or r. 11 to preclude the Court of Appeal from deciding this question and setting aside the abatement of the suit, and sec. 107 seems to be wide enough to enable the Court of Appeal to do so. Moreover, I can see no real difference between the Court of Appeal entertaining the application and setting aside the abatement of the suit, and the Court of Appeal entertaining the application, deciding that the abatement ought to be set aside, and remanding the suit to the Court of first instance to enable the Court of first instance to pass an order setting aside the abatement. The result is the same in both cases; and I can see no advantage to be gained by following the course approved of in the Bombay case cited above; and I can see nothing in the language of the CPC which forbids the Court of Appeal acting as the Court of Appeal did in the present case. I am of opinion that the learned District Judge was right in passing the order that he did and I, therefore, order that this Rule be discharged with costs, hearing-fee being assessed at one gold mohur.