ORDER 1. These are two miscellaneous applications in Civil Misc. Application No. 213/1976, whereby Union of India and others seek a certificate under Art. 133 of the Constitution in proceedings arising out of a petition under Art. 226 of the Constitution. Whereas, the prayer made in the first application is that the name of Sri Raghubir Saran appearing as opposite party in the application for certificate be removed and in his place the name of his heirs and legal representative be substituted, that made in the second application is that the delay in filing the aforesaid application he condoned. 2. Sri Raghubir Saran Gupta, the sole opposite party in the aforesaid application for a certificate under Art. 133 of the Constitution, died on 2-7-1975. The applicants, who now want to file an appeal before the Supreme Court moved an application on 30-11-76 praying that the name of the deceased he deleted and that in his place the names of eight heirs and legal representatives mentioned in the application be substituted. He also moved another application on the same date praying that the delay in filing the substitution application be condoned. 3. The prayer made by the Union of India and others has been objected to by the heirs of Raghubir Saran primarily on the ground that the substitution application having been filed long after the expiration of period of limitation, the application for the certificate has abated and no ground has been made out either for setting aside the abatement or for condoning the delay in moving the substitution application. 4. Learned counsel for the applicant viz. Union of India and others urged that no period of limitation has been prescribed for making a substitution application, in proceedings for obtaining a certificate under Art. 133 of the Constitution in connection with proposed appeal to Supreme Court against a judgment in a petition under Art. 226 of the Constitution. Accordingly, no question either of abatement of such proceedings, or there being any delay in making substitution application therein, arises. As admittedly, the persons mentioned in the application are heirs and legal representatives of Sri Raghubir Saran, their names ought to be brought on the record. Accordingly, no question either of abatement of such proceedings, or there being any delay in making substitution application therein, arises. As admittedly, the persons mentioned in the application are heirs and legal representatives of Sri Raghubir Saran, their names ought to be brought on the record. In the alternative, learned counsel contends that the facts mentioned in the affidavit filed along with the application for condoning the delay in filing the substitution application, justify an order for setting aside abatement and condoning delay in making the substitution application. 5. Learned counsel appearing for Shri Raghubir Saran has not been able to bring to our notice any statutory provision directly prescribing a period for making a substitution application in an application for a certificate under Art. 133 of the Constitution, and for its abatement. However, our attention was invited to Chap. XXIII of the Rules of Court which deals with applications that are to be made in connection with an appeal proposed to be filed before the Supreme Court. Rule 26 thereof lays down that where any party to the petition dies before the certificate is granted the provisions contained in Rr. 1 to 6 and 9, O. 22 and O. 32 of the Code shall, so far as may be and with necessary modifications and adaptations apply. 6. Order 22, Rule 4 runs thus : - (1) Where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone or a sole defendant or sole surviving defendant dies and the right to sue survives the court on an application made in that behalf shall cause the legal representatives of the deceased defendant to be made a party and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within time limited by law no application is made under R. (1) the suit shall abate as against the deceased defendant." 7. It. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within time limited by law no application is made under R. (1) the suit shall abate as against the deceased defendant." 7. It. means that in a case where one of two or more opposite parties in an application for leave to appeal to Supreme Court dies and the right to sue does not survive against the surviving opposite party or opposite-parties alone, or sole opposite party or sole surviving opposite party dies and the right to continue the application survives, the court on an application made in that behalf has to cause the legal representative of the deceased opposite party to be made a party' and to continue with the proceedings provided that where within the time limited by law no application for substitution as aforesaid is made, the application for leave to appeal to the Supreme Court is to stand abated. The intention underlying R. 26 of Chap. XXTII of the Rules of Court clearly is that in relation to death of parties, proceedings in applications for leave to appeal to the Supreme Court have to he dealt with precisely in the same manner in which a suit or an appeal is dealt with under Rr. 1 to 6 and 9 of O. 22 of the Civil P. C. Accordingly, if no application for substitution is made within the time limit normally prescribed for making an application under O. 22, R. 4 of the C. P. C. (i. e. 90 days as laid down in Art. 120 of the Limitation Act), the consequences mentioned in sub-rule (3) of R. 4 would likewise follow even in relation to an application for a certificate under Art. 133 (1) of the Constitution. 8. Learned counsel appearing for Union of India and others argued that R. 26 of Chap. XXIII of the Rules of Court is an instance of legislation by reference. It instead of repeating the provision contained in O. XXII, R. 4 of the C. P. C. after making necessary modifications therein in the Rules of Court itself, achieves the same by conveniently making a reference to that Rule and saying that the Rule shall with all necessary modifications and adaptations apply to such applications as well. It instead of repeating the provision contained in O. XXII, R. 4 of the C. P. C. after making necessary modifications therein in the Rules of Court itself, achieves the same by conveniently making a reference to that Rule and saying that the Rule shall with all necessary modifications and adaptations apply to such applications as well. The Rule does not purport to make the provisions contained in the Limitation Act, dealing with suits and appeals applicable also to applications in proceedings for obtaining certificate under Article 133 of the Constitution. What R. 26 of Chap. XXIII of the Rules of Court in effect lays down is that where an opposite party to an application for certificate under 'Article 133 of the Constitution dies, that shall unless an application for substitution is made with the time prescribed for making such application, abate. Art. 120 of the Limitation Act merely prescribes the period of Limitation for making a substitution application either in suit or in appeal. It does not lay down a limit for making a substitution application in proceedings other than in suit or appeal. There is no other article in the Limitation Act which lays down a period of limitation for making such application in proceedings relating to Art, 226 of the Constitution to which the Civil P. C. does not apply. There is also no other law which prescribes a period of limitation for making a substitution application in proceedings for a certificate under Art. 226 of the Constitution. In the circumstances, the substitution application in proceedings relating to grant of certificate under Art. 133 of the Constitution could he made at any time and no question of abatement and proceedings by reason of death of an opposite party, arises. 9. It may he mentioned that II. 38-A of Chap. VIII of Rules of Court has, with a view to meet similar situation in substitution, special appeals, and Tax Act references, made a provision, identical to R. 26 of Chap. XXIIJ, R. 38-A came up for interpretation before a Division Bench of this Court in the case of Nand Kishore v. Deputy Director of Consolidation reported in 1968 All LJ 1062. The Bench, after considering the language used in the Rule held that a provision that the limitation prescribed for making an application for substitution in proceedings governed by Chap. XXIIJ, R. 38-A came up for interpretation before a Division Bench of this Court in the case of Nand Kishore v. Deputy Director of Consolidation reported in 1968 All LJ 1062. The Bench, after considering the language used in the Rule held that a provision that the limitation prescribed for making an application for substitution in proceedings governed by Chap. VIII of Rules of Court, was the same as has been prescribed in Article 120 of the Limitation Act for making a substitution application under O. XXII of the Civil P. C., was implicit in the Rule itself. In arriving at that conclusion, (he Bench also relied upon the principles for interpreting such provision as had been enunciated by the Supreme Court in the case of Shiv Bahadur Singh v. State of Vindhya Pradesh ( AIR 1953 SC 394 ). We further find that a Full Bench of this Court in the case of Chandradeo Pandey v. Sukhdeo Bai ( AIR 1972 All 504 ), while dealing with the question regarding the time within which an application for substitution of the name of a deceased party in a civil revision, filed under Section 115 of the C. P. C. came to the conclusion that the limitation for filing such applications was three years as provided in Art. 181 of the Limitation Act. But then at the close of its judgment, it observed thus (at p. 506) : - . "Before parting with the case, we would like to observe the desirability of the amendment of the Rules of Court on the administrative side so as to prescribe a uniform period of limitation of 90 days for bringing the heirs of deceased party even in revision application. The Rules of the Court have already been amended so as to prescribe a period of 90 days for bringing the heirs of a deceased party in a writ petition under Articles 226 of the Constitution to special appeals and Tax Act References filed under Chapters IX, XXII and XXVII of the Rules of Court by introduction of Rule No. 38-A. Chap. VIII Rules of Court Part I." Aforesaid observations made by the Full Bench, even if they are considered to he obiter clearly indicate that the learned Judges constituting the Bench were inclined to share the view taken in Nand Kishores case (supra). VIII Rules of Court Part I." Aforesaid observations made by the Full Bench, even if they are considered to he obiter clearly indicate that the learned Judges constituting the Bench were inclined to share the view taken in Nand Kishores case (supra). We in our own part do not find any reason to take a contrary' view. 10. Learned counsel for the Union of India then urged that according to the Full Bench in the case of Chandra Deo Pandey (supra) as an application in revision filed under Section 1.15 of the Civil P. C, is neither a suit nor an appeal. The limitation prescribed in Art. 120 of the Limitation Act which provides limitation for an application to bring the legal representatives of a deceased plaintiff or appellant or that of deceased defendant or respondent on the record, does not apply to it and that the limitation in such cases is to be governed by Art. 137 of the Limitation Act which prescribes limitation for an application for which no period of limitation is provided elsewhere. Likewise, as an application for certificate under Art. 133 of the Constitution also is neither a suit nor an appeal, the period of limitation provided in Article 120 of the Limitation Act cannot apply to an application for substituting the heirs of a party in proceedings for obtaining certificate under Art. 133 (1) of the Constitution. Accordingly, the limitation for making such an application would he three years under Art. 137 of the Limitation Act. 11. We are unable to accept this submission for the simple reason that whereas limitation mentioned in Article 120 of the Limitation Act does not apply to civil revisions filed under Section 115 of the Civil P. C., either on its own force or on the basis of some Rule which makes the same applicable to it, R. 26 of Chap. XXIII of the Rules of Court, as explained above makes the same applicable to proceedings for obtaining certificate under Article 133 of the Constitution. There is thus no parity between an application for substitution made in a civil revision filed under Section 115 of the Civil P. C. and an application for a certificate under Art. 133 of the Constitution to which the provision of O. XXII, Rr. 1 to 6 and 9 of the Civil P. C. have by Rule 26 of Chap. There is thus no parity between an application for substitution made in a civil revision filed under Section 115 of the Civil P. C. and an application for a certificate under Art. 133 of the Constitution to which the provision of O. XXII, Rr. 1 to 6 and 9 of the Civil P. C. have by Rule 26 of Chap. XXIII of the Rules of Court, been made applicable. 12. In the result, agreeing with the pronouncement of law in the case of Nand Kishore v. Dy, Director of Consolidation (1968 All LJ 1062) (supra), we find that the limitation for moving an application for substitution in an application for leave to appeal to Supreme Court in proceedings arising out of a petition under Art. 226 of the Constitution is 90 days from the date of the death of the party as provided in Art. 120 of the Limitation Act, and if no application for substitution is made within that period, the application as provided in O. XXII of the C. P. C. abates as against the deceased party. The abatement of such an application can be set aside in case the concerned party is able to prove that it was prevented by any sufficient cause from continuing the proceedings. 13. There is no doubt that in this case, Shri Raghubir Saran died on 2-7-1975 and no application for substitution was made within 90 days of his death or acquisition of knowledge thereof (1-7-76) by the applicant, proceedings in the application under Art. 133 of the Constitution, therefore, as provided in O. XXII of the Civil P. C. abated. The point that now arises for our consideration is as to whether the Union of India and others have made out a case for setting aside the abatement, limitation for which is 60 days from the date of abatement and for condoning the delay in filing the substitution application. Although the applicants have not made any specific prayer for setting aside abatement of the proceedings, but for purposes of this case, we may take it that both the prayers viz. that for setting aside abatement as also for considering the delay in making such prayer arc involved in the prayer made in the case for condoning the delay in making the substitution application. 14. that for setting aside abatement as also for considering the delay in making such prayer arc involved in the prayer made in the case for condoning the delay in making the substitution application. 14. In the application for condoning the delay in making the substitution application, it has been mentioned that the opposite party, Shri Raghubir Saran died on 2nd July, 1975 and that this fact came to the knowledge of the applicants on 1st July, 1976 when a claim for rent of the house was made to the Military Estates Officer, Bareilly. It is not disputed that it is the Military Estates Officer, Bareilly who is in fact doing Pairwi on behalf of Union of India and others. The Military Estates Officer obviously was aware of the pendency of this case and of the fact that the claim for rent made by the heirs related to the house which was the subject matter of dispute in proceedings giving rise to the present proceedings. The application for substitution was filed on 30th Nov., 1976 i.e. after about 5 months. The applicants came to know about Shri Raghubir Sarans death on 1st July, 1976. There was nothing to prevent them from making an application within 90 days thereof and to save the present proceedings from abating. Only excuse for the lapse put forward by the Military Estates Officer is that although he came to know about the death of Shri Raghubir Saran from the claim for rent made by his heirs, he could not associate the same (claim for rent) with the pendency of the case in the High Court. This excuse in our opinion is not at all tenable inasmuch as even if the applicants thought that the claim of rent had nothing to do with the pendency of the case in the High Court, still the Military Estates Officer knew that the house in respect of which the heirs of Raghubir Saran were making the claim was subject matter of proceedings in the High Court and that Shri Raghubir Saran, who was the opposite party in the application pending in the High Court had died. There is absolutely nothing on the record to show that there was any basis for the applicants to think that any other Raghubir Saran, who owned some property other than that which was subject matter of the writ petition before the High Court had died and that the heirs of Raghubir Saran were claiming rent in respect of properly which was not subject matter of proceedings in the High Court. 15. In the result, we are not satisfied that there was any sufficient reason which prevented the applicant from moving an application for substituting the names of the heirs of Raghubir Saran within 90 days of their acquiring knowledge of Raghubir Sarans death and no case for setting aside the abatement of the application has been made out. 16. In the result both the applications i. e. for subtituting the names of the Shri Raghubir Sarans heirs as also that for condoning the delay in making the substitution application are rejected. 17. As no application for bringing the heirs of Shri Raghubir Saran was made within the period of limitation, the present proceedings for obtaining the certificate under Art. 133 of the Constitution have abated and we declare it accordingly.