JUDGMENT H.N. Agarwal, Member. - This is a second appeal against the order and judgment dated September 20, 1969 passed by Sri S.M. Hasan, Additional Commissioner, Faizabad Division in Appeal no. 517/Faizabad against the order dated March 8, 1968 passed by the Judicial Officer, Revenue Sadar and Tanda, district Faizabad in Case no. 215/148/42 under Section 209 U.P.Z.A. and L.R. Act. 2. I have heard the learned counsels for the appellants and have gone through the recorded. The respondents have not appeared to contest the appeal in spite of due service. 3. The main contention of the learned counsel for the appellant is that the learned Additional commissioner has erred in law in not passing an order of abatement of the first appeal under Order 22, Rule 11 C.P.C. on account of failure to bring the legal representatives of Balagat Khan on record within time. The learned counsel has also argued that the order of the learned Additional Commissioner abating the appeal and the suit under Section 5(2) of the U.P. Consolidation of Holdings Act is without jurisdiction. 4. It would appear that Balagat Khan, respondent no. 7 in the first appeal died on April 21, 1966 and the application for substitution of his heir was moved by the appellant on August 26, 1968. The learned Additional Commissioner rightly rejected the substitution application on February 20, 1969 holding that the appellant had not shown sufficient cause for moving the belated substitution application. The village whare the land in dispute is situate come under consolidation operations by notification no. 5448/C 168-169 published in the U.P. Gazette on August 16, 1969. The question arising, therefore,is whether the question arising, therefore, is whether the trial appeal should have been stated under Order 22, Rule 11 C.P.C. or under Section 5(2) of the C.H. Act. The learned counsel for the appellant has referred to Lantu v. Jagdeo 1972 R.D. 322 in which a learned Member and observed as follow:- "As stated earlier respondent no. 2 had died but his legal representatives were not brought on record. The second appeal has thus become incompetent an did not remain a properly constituted appeal. The learned counsel for the appellant has referred to Lantu v. Jagdeo 1972 R.D. 322 in which a learned Member and observed as follow:- "As stated earlier respondent no. 2 had died but his legal representatives were not brought on record. The second appeal has thus become incompetent an did not remain a properly constituted appeal. This being so no order for abatement under Section 5 of the U.P.C.H. Act can be passed even thought he village has come under consolidation operation." The learned counsel has also referred to Ram Dular v. Jangi 1973 R.D., 198, in which S. Malik, J has held as follows: "Moreover, it was rightly pointed out by the learned counsel for the respondents that in deciding whether the appeal abated and it liable to be dismissed in toto, this Court will not be deciding any of the questions enumerated in clause (a) of subsection of 2 S. 5 of the U.P. Consolidation of Holdings Act, the language of which need not be reproduced. It was also pointed out that from Section 5 of the said Act it is apparent that before it is held that an appeal pending in a Court has abated it is necessary to issue notice to the parties. In this case as the legal representatives of Hari Have not been brought on the record it is not possible to issue notice to all the necessary parties. Under Section 5 of the U.P. Consolidation of Holdings, Act, it will further be necessary to decide after hearing the parties whether on the date consolidation operation stated, any competent appeal was pending in this Court. The language of Section 5 of the Consolidation of Holdings Act does not show that it includes an incompetent appeal which would amount to no appeal pending in this Court. As has been pointed out from the fact already narrated, due to the death of Hari, the entire appeal must be deemed to have abated on the expiry of three months when legal representative of Hari Were not brought on the record. As has been pointed out from the fact already narrated, due to the death of Hari, the entire appeal must be deemed to have abated on the expiry of three months when legal representative of Hari Were not brought on the record. In support of what has been discussed, my attention was drawn on behalf of the respondents to the observations made by this Court in Smt. Lakhraji and others v. Dashrath Singh and others 1956 R.D. 245." The same view has been reiterated in Nasir Ahmad v. Babu Lal 1974 R.D. 130, and has also been followed in Ram Nath v. Puranmasi 1975 R.D 152. 5. There is little doubt that Section 5(2) of U.P. Consolidation of Holdings Act will come into pay only when a competent appeal is pending and not otherwise. Thus, where one of the parties to an appeal dies and no substitution is moved within the prescribed period of limitation, the appeal becomes incompetent and automatically stands abated under Order 22 Rule 11, C.P.C. In such a case, any order abating the appeal under Section 5 (2) of U.P. Consolidation of Holdings Act is without jurisdiction. 6. In the present case, the appeal had become incompetent on account of non-substitution of the heirs of the respondents no. 7 within the prescribed period. The impugned order of the learned Additional Commissioner abating the appeal under Section 5, U.P. Consolidation of Holdings Act on September, 20, 1969, is, therefore, erroneous in law and without jurisdiction. I hereby allow the appeal, set aside the order of the learned Additional Commissioner and order that the appeal field by Mata Bhikh and Ram Shabad in the lower appellate Court shall be abated under Order 22, Rule 11, C.P.C.