JUDGMENT Chakravartti, J. - This appeal fails for a technical reason but in crier to explain what, that reason is it is necessary to state certain events which have taken place since the appeal was filed. The appeal is by the Plaintiff and the suit out of which it arises was one for ejectment of a large body of persons numbering 26 or 27. The trial Court decreed the suit against all the Defendants except Defendants Nos. 11 to 14 against whom it was dismissed for the reason that they disclaimed all interest in the disputed land. The suit was contested at the trial stage only by Defendants Nos. 4, 5, 11 to 14, and 15 to 19. After the decision of the- trial Court, there was an appeal by Defendants Nos. 4 and 5 which was allowed and the Plaintiffs suit was dismissed. Thereupon, the present second appeal to this Court was preferred. One of the Defendants, namely Defendant No. 27, did not enter appearance or contest the suit either in the trial Court or in the Court of appeal. He died during the pendency of the appeal in this Court, but his heirs were not brought on the record within the time allowed by law. An application for setting aside the abatement as respects this Defendant was however, made, but it was dismissed on the 25th July, 1944, by Mr. Justice Edgily. The learned Judge was of opinion that no satisfactory explanation had been furnished for the delay which had occurred and finally he made the following observation : In the circumstances the application is rejected. The appeal must, therefore be treated as having abated against the deceased Respondent No. 27. 2. Mr. Gupta, who appeared in support of the appeal, concluded that the suit being one for ejectment he would be unable to contend that even if the abatement of the appeal as respects Respondent No. 27 stood the rest of the appeal would nevertheless survive. He however, presented before me an application framed in term, of sub-r. (4) added to Or. 22, r. 4 of the CPC by the Calcutta High Court By that application, is was prayed that the order dated the 25th July, 1941, might he vacated and the Appellant might be exempted from the necessity of substituting the legal representative of deceased Respondent No. 27. 3. Or. 22, r. 4 of the CPC by the Calcutta High Court By that application, is was prayed that the order dated the 25th July, 1941, might he vacated and the Appellant might be exempted from the necessity of substituting the legal representative of deceased Respondent No. 27. 3. Or. 22 r. 4 (3) lays down that where within the time limited by law, no application is made under sub-r. (1), the suit shall abate as against the deceased Defendant. The application contemplated by sub-r. (1) is an application for making the legal representatives of the deceased Defendant parties. Sub-r. (3) has been amended by the Calcutta High Court by the addition of the words except as hereinafter provided. At the end, a new sub-r, numbered (4), has been added, which provides that the Court, whenever it sees fit, may exempt the Plaintiff from the necessity of substituting the legal representatives of any such Defendant who fails to appear and contest the suit at the hearing. It is thus clear that by virtue of sub-r. (4), added by the Calcutta High Court to Or. 22, r. 4, an abatement which would have occurred under sub-r. (3) will not occur, if the Court sees fit to make an order under sub-r. (4). If in the present case no application for petting aside the abatement had been made, the field would have been clear and it could perhaps be considered today whether the appellant ought not to be exempted from substituting the legal representatives of deceased Respondent No. 27. 4. The difficulty arising in this case is caused by the order passed on the 25th July, 1944. It may be that sub-r. (4) does not contemplate merely an appeal which is still alive but probably covers the case of an appeal which has already abated. Even so, however, the position, in my view, is different when an application for setting aside an abatement has been made and such application has been rejected. Mr. Gupta contended that the order passed by Mr. Justice Edgley had in fact added nothing to the result brought about by law, that is to say, added nothing to the simple fact that an abatement had taken place. I am unable to concur in that view. It was definitely stated in the order that the appeal must be treated as having abated against deceased Respondent No. 27. Justice Edgley had in fact added nothing to the result brought about by law, that is to say, added nothing to the simple fact that an abatement had taken place. I am unable to concur in that view. It was definitely stated in the order that the appeal must be treated as having abated against deceased Respondent No. 27. As between that Respondent and the Appellant the matter, in my view, is concluded by that order and if I were today to allow the application made before me, I would be virtually setting aside the order passed by Mr. Justice Edgley which, in my view, I am not competent to do. Even apart from this technical difficulty, I am of opinion that in cases where an abatement has already taken place, the proper stage at which an application of this character should be made is either when the abatement becomes known to the Appellant and he does not wish to make an application for setting it aside or when, after making an application for setting aside the abatement and finding that it is not succeeding, he decides to invite the Court to grant him the alternative relief and to exercise its discretion under sub-r. (4) of r. 4 of Or. 22. But once an order has been made, refusing to set aside an abatement and further declaring by an order of the Court that the appeal as respects the deceased Respondent concerned has abated, it is, in my opinion, no longer open to the party to make an application under sub-r. (4) nor is it open to the Court to revise the previous order. There has already been a decree. The application made today must, accordingly, be rejected. 5. Although I have assumed above that the discretion under Or. 22, r. 4 (4) can be exercised even after an abatement has taken place, I am by no means certain that sub-rr. (8) and (4) have not reference to a stage when the appeal has not yet abated. The sub-rules are addressed not to the setting aside of an abatement but to its prevention. 22, r. 4 (4) can be exercised even after an abatement has taken place, I am by no means certain that sub-rr. (8) and (4) have not reference to a stage when the appeal has not yet abated. The sub-rules are addressed not to the setting aside of an abatement but to its prevention. Sub-r. (3) says that the suit shall abate, if no application for substitution is made within the time limited by law, when it proceeds to state "except as hereinafter provided", it only adds another exception and that exception is to be found in sub-r. (4) which may be summarised as "if the Court does not grant exemption from making substitution". The effect of the two sub-rules, read together, appears to be that upon the death of a Defendant, the suit "shall abate", unless an application for substitution is made in due time or unless the Court exempts the Plaintiff from substituting the legal representatives of the deceased party. Both the exceptions thus refer to circumstances which will avert an abatement or prevent it from occurring and so must be earlier in time. The position where an abatement has taken place is dealt with by Rule 9 of the Order and it is significant that the provision for exemption from substitution is not placed under that rule, but under Rule 4. It is, however, not necessary to pursue this matter, because even on the basis that sub-r. (4) applies after abatement as well, the application before me can not succeed by reason of the order of the 25th July, 1944. 6. As already stated, Mr. Gupta conceded that if the application could not be allowed, he could not contend that the appeal had not wholly abated. The result is that the whole appeal must be treated as having abated. Let a note be made to that effect. There will be no order for costs.