ORDER : 1. In civil Suit No. 5/1946-47 before the Sub-Judge, Alirajpur, the deft, intimated on 28-11-1947 that the pltf. died on or about 11-11-1947. The pltt's. pleader replied that he bad heard of this from other sources but was unable to make a statement. The suit was for possession of a house and damages and obviously the right of suit survived but the learned Judge passed an order on the same day under O. 22, R. 1, C. P. C. that the suit abated. The present appcts. claiming to be the legal representatives of the deceased pltfs. applied for being substituted in place of the de. ceased. The learned Judge accepted the contention of the defts. that the appln. was governed by Art. 171, Limitation Act, and having been presented after the expiry of 60 days, it was time barred. He also upheld the contention that under Muhammadan Law a mother could not be the guardian of her minor son Bawla for the purpose of the appln. 2. Rule 1 of O. 22, C. P. C. provides that a suit shall not abate if the right to sue survives and in the present case, it is conceded that the right does survive; and the order of abatement of the suit is therefore illegal. The question of its being without jurisdiction is debatable, though I am inclined to the view that the order in contravention of the power conferred by law in a nullity, but the case being before me in revn; I have no hesitation in setting aside the order as being in any case an illegal exercise of jurisdiction. 3. The appln. is one for substitution of the representatives and the period of limitation being 90 days under Art. 177 (Art. 176?), Limitation Act, it is within time. Mt. Kadiran Bai is only a next friend and the question of the propriety of her being so does not arise, as her interest is not alleged to be in conflict with that of her son; and there is no person with a better right to contest. 4. The order of the lower Ct. is sat aside and the case remanded to the Lower Ct. for disposal according to law after substituting the appcts. in place of the deceased pltf. The opponent defts., shall pay the costs of the petnrs. Pleaders' fee Rs. 20 (Twenty).