A. K. SEN, B. C. Chakrabarti ( 1 ) THIS Rule was issued on an application under section 115 of the Civil Procedure Code and is directed against an order dated May 18, 1978, passed by the learned Additional District Judge, 6th Court, Alipore, in Money Appeal No. 64 of 1975 allowing an application under Order 22 Rule 9 of the Code of Civil Procedure. The substituted heirs of the principal respondent are the petitioners before us. ( 2 ) THE two brothers Sushil and Sunil, the opposite party Nos. 1 and 2 instituted Money Suit No. 2 of 1973 against one Md. Khalil and another claiming arrears of rent from February 1970 to January 1973 from Md. Khalil, the lessee. The suit was dismissed on March 31, 1975, and the said two brothers preferred an appeal being Money Appeal No. 64 of 1975, as aforesaid. ( 3 ) DURING the pendency of the said appeal, the principal respondent Md. Khalil died on June 22, 1975. On September 12, 1975, that is, within the period of limitation the appellants filed an application for substituting Sk. Gulzar (one of the petitioners before us), the father of the deceased and a son by the name of Md. Rashid in place and instead of the deceased principal respondent Md. Khalil. The appellants filed a supplementary application on November 10, 1975, for substituting 7 heirs of the deceased Md. Khalil including the said Sk. Gulzar on an allegation that they have further come to learn that Md. Khalil at his death left behind some more heirs and legal representatives in his wife, two other sons and two daughters. In this application, the petitioners claimed that the son who was sought to be substituted earlier by the name of Md. Rashid should be described in the alias name of Abdul Wadood. The learned District Judge treating the two applications to be one allowed the prayer for substitution on the basis that such an application had been filed in time by an order dated November 13, 1975. The appeal was then transferred to the 7th Court of the learned Additional District Judge. ( 4 ) NOTICE of the appeal then being served on the substituted heirs, Sk. The appeal was then transferred to the 7th Court of the learned Additional District Judge. ( 4 ) NOTICE of the appeal then being served on the substituted heirs, Sk. Gulzar filed an application on July 20, 1976, for recording abatement of the appeal since the application for substituting the heir other than himself was filed on November 10, 1975, that is, at a time beyond the period of limitation. This application of Sk. Gulzar was contested by the appellants and the learned Additional District Judge by an order dated March 26, 1977, recorded abatement of the appeal as a whole. He recorded such abatement only on the ground that the application for substituting all the heirs of the deceased Md. Khalil was not filed within the period of limitation. In doing so, he overruled the claim of the appellants that since at least one of the heirs was brought on record within the period of limitation there would be no abatement. The learned Judge took the view that one of such heirs cannot represent the estate of the deceased. In recording abatement the learned Judge, however, specifically observed: ?it may or may not be that there was sufficient cause why no application was made in time for mentioning the names of the aforesaid 5 persons also as legal representatives of the deceased Md. Khalil or that the appellants after diligent and bonafide ascertained only the names of Sk. Gulzar and Md. Rashid as legal representatives of the deceased Md. Khalil but such questions may be decided if and when an application is made for an order to set aside the abatement. ? ( 5 ) IN the light of the order so made on April 23, 1977, the appellants filed an application for substituting the seven heirs of the deceased principal respondent Md. Khalil after setting aside abatement. In this application it was clearly averred that Md. Khalil died at his native place in Bihar and they could to the best of their ability ascertain the names of the two of the heirs when they filed the first application for substitution dated September 12, 1975. It was further averred that they had no knowledge of the other heirs prior to November 10, 1975. Khalil died at his native place in Bihar and they could to the best of their ability ascertain the names of the two of the heirs when they filed the first application for substitution dated September 12, 1975. It was further averred that they had no knowledge of the other heirs prior to November 10, 1975. Their case further was that when the civil court reopened after the puja Vacation the appellants came to know from the proforma respondent that the heirs and legal representatives of Md. Khalil had substituted themselves in another suit being Title Suit No. 151 of 1973 and on search of the records of that case the appellants could ascertain the names of the other heirs and legal representatives on November 10,1975. In this application the appellants further case was that the learned judge having recorded an order of abatement by his order dated March 26, 1977, they applied for a certified copy of the said order which was obtained on April 22, 1977, and on perusal thereof the application under Order 22 Rule 9 of the Civil Procedure Code was filed on April 23, 1977. ( 6 ) THIS application was contested by all the heirs and legal representatives of Md. Khalil. In the objection filed on their behalf it was claimed that the appellants were not diligent enough when they failed to substitute all the heirs and legal representatives of the deceased respondent in time and that in any even they having ascertained the names of all the heirs on November 10, 1975, had no sufficient ground in not filing the application under Order 22 Rule 9 of the Civil Procedure Code before March 1977. ( 7 ) THE same learned Judge who had earlier recorded abatement, allowed the appellants' application under Order 22 Rule 9 of the Civil Procedure Code by the order impugned in this Rule. He accepted the case of appellants that in spite of due diligence they could not ascertain the names of all the heirs prior to November 10, 1975, and since the application for substituting all the heirs and legal representatives was filed on that date, there is sufficient cause for the delay prior thereto. ( 8 ) MR. He accepted the case of appellants that in spite of due diligence they could not ascertain the names of all the heirs prior to November 10, 1975, and since the application for substituting all the heirs and legal representatives was filed on that date, there is sufficient cause for the delay prior thereto. ( 8 ) MR. Banerji appearing in support of this Rule has raised three points, viz, (1) that the learned judge having recorded abatement of the suit as a whole by his earlier order dated March 26, 1977, had no further jurisdiction to entertain any further application under Order 22 Rule 9 of the Civil Procedure Code, since such an application stood barred by the earlier order, (2) that when the appellants were also parties to Title Suit No. 151 of 1973 wherein the heirs of the deceased Md. Khalil had got themselves substituted on September 19, 1975, it could not have been held by the learned Judge that there was sufficient cause for the appellants for not substituting all the heirs prior to November 10, 1975, and (3) that the learned judge failed to appreciate that the limitation prescribed being one for the application under Order 22 Rule 9 of the Civil Procedure Code, and such an application having been filed only on April 23, 1977, the learned Judge could not have allowed that application without any finding that there was sufficient cause for not filing such an application earlier than April 1977. ( 9 ) THE Rule is being contested by the appellants and Mr. Bose appearing on their behalf was contested all the points raised by Mr. Banerji. ( 10 ) SO far as the first point raised by Mr. Banerji is concerned, we are unable to sustain the objection so raised by Mr. Banerji in view of the facts of the present case set out hereinbefore. Mr. Banerji has strongly contended that an order recording abatement constitutes a final decision equivalent to a decree, and as such, is appealable and no appeal in the present case having been filed that order has become final. According to Mr. Banerji that order being final no further application under Order 22 Rule 9 is maintainable. Strong reliance is placed by him on a single Bench decision of the Madhya Bharat High Court in the case of (1) Arjun v. Balabant, AIR 1954 Madhya Bharat 294. According to Mr. Banerji that order being final no further application under Order 22 Rule 9 is maintainable. Strong reliance is placed by him on a single Bench decision of the Madhya Bharat High Court in the case of (1) Arjun v. Balabant, AIR 1954 Madhya Bharat 294. Though we agree with Mr. Banerji that the order recording abatement becomes final in such circumstances, we are unable to agree with him that such finality necessarily and in all cases leads to a result as suggested by Mr. Banerji. There is some divergence in judicial opinion as to whether an order recording abatement constitutes a decree or not but in our view there can be no doubt that a distinction should be made between cases in which abatement is due to the failure to bring the legal representatives on record within the period of limitation or due to the court holding that the petitioner is not the legal representative and cases in which the court recording abatement decides that the right to sue does not survive and in consequence the proceeding abates. In our view, while in the later class of cases an application for setting aside the abatement under Rule 9 of Order 22 of the Code may stand barred by the order recording abatement, the earlier class of cases come squarely within the scope of the (Rule 9 of Order 22 of the Code) so that the legal representatives and/or the legal representatives - as the case may be - can still be brought on record by setting aside abatement in case sufficient cause is shown for not making the application for substitution in time resulting in abatement. ( 11 ) THE decision in the case of (1) Arjun v. Balabant (Supra) relied on by Mr. Banerji is clearly distinguishable. There one of the plaintiffs died and an application by two of the alleged legal representatives of the deceased plaintiff was dismissed on a finding that they were not the legal representatives. Then there was a further application by the remaining two plaintiffs for leave to proceed with the suit on a claim that the right to sue survived in their favour. That application too was dismissed on a finding that the right to sue did not survive. Then there was a further application by the remaining two plaintiffs for leave to proceed with the suit on a claim that the right to sue survived in their favour. That application too was dismissed on a finding that the right to sue did not survive. Thereafter when those remaining plaintiffs along with the alleged legal representatives whose application for substituting themselves had earlier been rejected by the court in regarding abatement, made an application under Order 22 Rule 9 of the Code, such an application was held to be not maintainable. That case stands on a different footing altogether, because there the right to sue was specifically held to be not surviving in favour of the applicants under Order 22 Rule 9 of the Code by the earlier order which became conclusive between the parties. In the present case on the other hand, the learned judge by the earlier order recorded abatement only on the ground that the application for substitution had not been filed within time, giving at the same time specific leave to the appellants to come with a prayer for setting aside abatement under Rule 9 of Order 22 of the Code, Though Mr. Banerji lays great emphasis on the fact that the court actually recorded an abatement of the suit as a whole, in our view such recording leads to no special consequence in the present case because the order merely records the consequence which followed in law. But when the law itself gives the right to party to have the abatement set aside on proof of sufficient cause under Order 22 Rule 9 of the Code, the mere recording of the abatement certainly does not take away the right so provided. In this view, the first objection raised by Mr. Banerji must fail and is overruled. ( 12 ) SO far as the second point raised by Mr. Banerji is concerned, the petitioners never disputed the claim of the appellants that the said appellants came to know the names of all the heirs only on November 10, 1975, and that again on effecting a search of the records of Title Suit No. 151 of 1973. Though Mr. Banerji is concerned, the petitioners never disputed the claim of the appellants that the said appellants came to know the names of all the heirs only on November 10, 1975, and that again on effecting a search of the records of Title Suit No. 151 of 1973. Though Mr. Banerji contends now for the first time in this court that the appellants themselves being parties to the said suit they must be deemed to have due knowledge of the names of such heirs at least on and from the day when the heirs get themselves substituted in the said suit on September 19, 1975, we are unable to sustain such an objection raised for the first time in this revisional application, particularly in view of the fact that the appellants were proforma defendants in that suit and it is the specific case of the appellant that the heirs of Md. Khalil filed an application for substituting themselves in that suit on the 89th day and that again without any notice to the co-defendants, namely, the appellants. The appellants could know of the existence of other heirs and legal representatives only after the Puja Vacation of the civil court which intervened, on November 10, 1975. In this view, the second point raised by Mr. Banerji fails and is overruled. ( 13 ) SO far as the third point raised by Mr. Banerji is concerned, it is no doubt true that an application under Order 22 Rule 9 of the Civil Procedure Code should be made within 60 days from the date of abatement and when such an application is not filed within the time so prescribed sufficient cause again has to be made out for condonation of the delay in making such an application under section 5 of the Limitation Act. In the present case, a prayer for condonation under section 5 of the Limitation Act had been made. No doubt, the learned Judge did not consider whether there was sufficient cause for not filing the application under Order 22 Rule 9 of the Code within 60 days from the date of abatement. In the present case, a prayer for condonation under section 5 of the Limitation Act had been made. No doubt, the learned Judge did not consider whether there was sufficient cause for not filing the application under Order 22 Rule 9 of the Code within 60 days from the date of abatement. He proceeded on the basis that the second application for substitution, namely, the application filed on November 10, 1975, should be treated as the application under Order 22 Rule 9 of the Code and since the appellants made out sufficient cause for non-filing of such an application before that date, he allowed the prayer made on behalf of the appellants for setting aside abatement on condonation of the delay. The view taken by the learned judge of treating the application for substitution as one for substitution on setting aside abatement finds support in some judicial pronouncements of different High Courts. But that apart as we have indicated hereinbefore, the appellants did make out sufficient cause why they could not file an application under Order 22 Rule 9 of the Civil Procedure Code prior to April 23, 1977. Their earlier application for substitution having been allowed they were obviously proceeding on the basis that there had been no abatement. Whether there had been an abatement or not is a debatable issue. In our view, the learned Judge in recording his previous order of abatement failed to take note of the fact that there could have been no abatement in the event the appellants had substituted two of the heirs bonafide in ignorance of the other heirs. That aspect was totally lost sight of by the learned judge when the learned judge decided the issue against the appellants and held that there had been an abatement, the question of the appellants taking steps to set aside abatement did arise. Such an order was passed on March 26, 1977, and a copy of order was applied for forthwith. Since the appellants were not expected to make the application under Order 22 Rule 9 of the Code without considering the actual terms of the order itself, they can legitimately claim exclusion of the time required for getting the certified copy of the said order. Since the appellants were not expected to make the application under Order 22 Rule 9 of the Code without considering the actual terms of the order itself, they can legitimately claim exclusion of the time required for getting the certified copy of the said order. That time being excluded, the application under Order 22 Rule 9 of the Code was presented on the day following the date on which the copy of the order was so received. Therefore, the appellants did make out sufficient cause for the delay in making the application which they did on April 23, 1977. In this view, the third point raised by Mr. Banerji fails and is overruled. ( 14 ) AS all the points raised by Mr. Banerji fail, the application fails. The Rule is discharged. There will be no order as to costs. ( 15 ) LET the records be sent down forthwith. Chakrabarti, J. : i agree. Application held.