JUDGMENT V. P. Gupta, J.—This revision petition is directed against the order, dated 21st June, 1978, passed by the Senior Sub Judge, Mandi, by which he has allowed the application of the plaintiff and exempted him from the necessity of substituting the legal representatives of deceased defendants 3 and 4, i.e., Shri Dev and Mansukh respectively who had been proceeded ex parte in the suit. 2. The brief facts of the case are that Gaur Singh plaintiff filed a suit on 17th August, 1971, for partition of the alleged joint property in the court of the Senior Sub Judge, Mandi. It was alleged by him that he is a co-sharer and is in joint possession of the property in dispute and as such is entitled to have separate possession of the same. 3. There were nine defendants in the suit and out of these only defendants 1 and 9 contested the suit and filed a written statement as is apparent from the order, dated 29th April, 1972. The other defendants 2 to 8 were proceeded ex parte. Defendants 3 and 4 were proceeded ex parte on 29th March 1972 and 19th November, 1971 respectively. 4. During the pendency of the suit, Gaur Singh plaintiff died on 7t& i October, 1975 and an application for impleading his legal heirs was filed on 2nd January, 1976. This application appears to have been allowed on 11th October, 197o and thereafter proceedings in the suit continued. 5. On 21st March, 1978, an application was filed by defendants 1 and 9 praying that the suit of the plaintiff be dismissed, as having been abated in its entirety because Shri Dev, defendant 3, had died on,3rd October, 1972, and Mansukh, defendant 4, had died on 4th January, 1973 and their legal representatives had not been brought on record within time. The case was postponed to 13th April, 1978, for filing a reply to this application and arguments on the same. 6. On 13th April, 1978, the plaintiff filed an application under Order 22, Rule 4 (4) read with section 151 C. P. C. and section 5 of the Indian Limitation Act praying that deceased defendants 3 and 4 had been proceeded parte, they had not filed any written statement an 1 that they had failed to contest at the hearing because they were not interested in the subject matter of the suit. It was also alleged that the plaintiff was old and physically disabled to act effectively in the suit and was ignorant about the death of those defendants and that those defendants were not contesting the suit. It was also alleged that cue plaintiff came to know on 2lst March, 1978 only, that the legal representatives of those defendants are to be brought on the record. In these circumstances, it was prayed that the plaintiff be exempted from the necessity and substituting the legal representatives of defendants 3 and 4 and in case this exemption i. e not allowed then the abatement, if any, be set aside and necessary orders be passed. The plaintiff also filed a reply to the application of defendants 1 and 9 alleging similar facts. 7. This application was contested by defendants 1 and 9. The Senior Sub Judge, Mandi, vide his order, dated 28th June, 1978, has disposed of the said application filed by the defendants I and 9 for dismissal of the plaintiffs suit on the ground of abatement, and the other application filed by the plaintiff under Order 22, Rule 4 (4) C.P.C. read with section 151, C. P. C. and section 5 of the Indian Limitation Act. 8. In this revision petition, the learned counsel for the petitioner has contended that the order of the Senior Sub Judge passed on the application is illegal, unjust and improper and that the same is liable to be set aside. According to him the provisions of Act No. 104 of 1976 (hereinafter referred to as the Act of 1976) by which the Civil Procedure Code (shortly called the Code) was amended and in Order 22 Rule 4 of the old Code, Sub rule (4) was inserted, is not applicable in the present case as the deaths of Shri Dev and Mansukh defendants took place in the years 1972 and 1973 respectively, i.e , before the commencement of the Act of 1976. He has specifically referred to section 97 (2) (r) of the Act of 1976 and has contended that the abatement of the suit due to the death of the above named defendants bad taken place before the commencement of the Act of 1976. He has specifically referred to section 97 (2) (r) of the Act of 1976 and has contended that the abatement of the suit due to the death of the above named defendants bad taken place before the commencement of the Act of 1976. The next contention of the learned counsel for the petitioner is that every enactment is to be given prospective effect and it cannot apply retrospectively unless it is specifically indicated in the amended Act itself. He further contended that in the suit the abatement is automatic and no orders are to be passed to that effect and that in this particular case the abatement of the suit due to the deaths of Shri Dev and Mansukh defendants had already taken place before the commencement of the Act of 1976. It was further contended by him that the provisions of Order 22 Rule 4 (4) which were inserted by the Act of 1976 could only be made applicable if the abatement had not taken place, i.e. within 90 days of the death of the party. In support of his contentions the learned counsel has referred to Lakshmi Charan Panda and another v. Satyabadi Behera and orhers, [AIR 1964 Orissa 39] and Annapurna Devi v. Smt. Harsundari Dassi and otters [AIR 1975 Calcutta 12]. On the contention that formal order of abatement need not be passed and that the act of abatement is automatic, he has referred to Union of India v. Ram Charan (deceased) through his Legal Representatives [AIR 1964 SC 215] and Sadassiva Rauji Gatonde and others v. Jose Joaquim Fonseca [AIR 1976 Goa 11]. 9. Shri Inder Singh, Advocate appearing on behalf of the respondents has contended that the provisions of sub-rule (4) inserted in Order 22 Rule 4 of the Code by the Amendment Act of 1976 are applicable in the present suit and to support his contention he has referred to the provisions of section 97 (3) read with section V7(2) (r) of the Act of 1976. It was contended by him that if an order of abatement had been passed by the court before the commencement of the Act of 1976 then the matter would have concluded, but as in this case no such formal order was passed, therefore, the provisions of section 97 (2) (r) will not apply, and under the provisions of section 97 (3) the suit was pending, at the time of the commencement of the Act, therefore, the inserted provisions of sub-rule (4) in Order 22 Rule 4 of the Code are applicable. It was further contended by him that the amended provisions of the Code, i. e. sub-rule (4) of Order 21 Rule 4 can be made applicable even after the expiry of 90 days. It was also asserted by him that although the act of abatement of a suit is automatic and no formal order is to be passed, but to make the applicability of section 97 (2) (j) the passing of order by the court is a condition precedent and that in this particular case no such order has been passed and, therefore, the provisions of clause (r) will not be applicable. In support of his contentions he has referred to Rajnath Sahgal and others v. Shiva Prasad Sinha and others [AIR 1979 Patna 239], Nepal Chandra Saha v. Rebati Mohan Saha and others [AIR 1979 Gauhati 1] and Velappan Pillai v. Parappan Panickar and others [AIR 1969 Madras 309]. 10. It was admitted by the learned counsel for the respondents that the provisions of the Act of 1976 apply prospectively unless the same are made applicable retrospectively and he has referred to section 97 (3) to support his contention that in the instant case the provisions of the Act of l976 will be made applicable, as the suit was proceeding in the court and as such the inserted sub-rule (4) in Order 22 Rule 4 of the Code will be applicable. He has further contended that the order passed by the senior sub Judge is legal and valid and the same is not liable to be set aside. 11. I have carefully considered the contentions of the learned counsel for the parties and have also gone through the record of the case. 12. He has further contended that the order passed by the senior sub Judge is legal and valid and the same is not liable to be set aside. 11. I have carefully considered the contentions of the learned counsel for the parties and have also gone through the record of the case. 12. To appreciate the contentions of the learned counsel for the parties it is necessary to refer to the provisions of Order 22 Rule 4 and Order 22 Rule 9 of the old Code of 1908, and subsequent insertion of sub-rule (4) in Order 22 Rule 4 by section 73 of the Act of 1976, and the provisions of section 97 thereof. 13. It is no doubt true that every Act does not apply retrospectively unless it is so provided. The relevant portions of section 97 of the Act of 1976 read as follows; "97. Repeal and Savings.—(1) Any amendment made or any provision inserted in the principal Act by a State Legislature or a High Court before the commencement of this Act shall, except in so far as such amendment or provision is consistent with the provisions of the principal Act as amended by this Act, stand repealed. (2) Notwithstanding that the provisions of this Act have come into force or the repeal under sub-section (1) has taken effect and without prejudice to the generality of the provisions of section 6 of the General Clauses Act, 1897 (10 of 1897),— (a) to (q). (r) the provisions of rule 4 of Order XXII of the First Schedulers substituted by section 73 of this Act shall not apply to any order of abatement made before the commencement of the said section 73 ; (s) to (zb) ... (r) the provisions of rule 4 of Order XXII of the First Schedulers substituted by section 73 of this Act shall not apply to any order of abatement made before the commencement of the said section 73 ; (s) to (zb) ... — (3) Save as otherwise provided in sub-section (2), the provisions of the principal Act, as amended by this Act, shall apply to every suit, proceeding, appeal or application, pending at the commencement of this Act or instituted or tiled after such commencement notwithstanding the fact that the right, or cause of action, in pursuance of which such suit, proceeding, appeal or application is instituted or filed, had been acquired or had accrued before such commencement." The above provisions contained in section 97 (2) (r) clearly lay down that provision of sub-rule (4) which has been inserted in Order 22 Rule 4 shall not apply to any order of abatement made before the commencement of the said section 73 of the Act of 1976 (emphasis mine). It clearly means that to make the provision of sub-rule (4) inserted by the amendment Act ©t 1976 inapplicable the court should have passed an order of abatement prior to the commencement of the amendment Act. It will further lead to the conclusion that if a formal order of abatement has not been recorded by the court, before the commencement of the Act of 1976, then there is no bar to the applicability of the provisions of subsequently inserted sub-rule (4) because section 97(3) of the Act of 1976 lays down that the provisions of the Act of 1976 shall be made applicable to all suits which were pending in a court at the commencement of this Act. In the present case, it is an admitted fact that although two defendants had died before the commencement of the Act of 1976 but an order of abatement had not been passed by the court and the suit was a pending suit at the commencement of the Act of 1976. In such circumstances, the provisions of section 97 (2) (j) of the Act of 1976 cannot be made applicable, with the natural consequences that sub-rule (4) of order 22 Rule 4 can be made applicable, if in the circumstances of the case it is considered desirable. In such circumstances, the provisions of section 97 (2) (j) of the Act of 1976 cannot be made applicable, with the natural consequences that sub-rule (4) of order 22 Rule 4 can be made applicable, if in the circumstances of the case it is considered desirable. Hence the first contention of the learned counsel for the petitioner that sub-rule (4) as inserted by the Act of 1976 in Order 22 Rule 4 of the Code will have no application in the circumstances of the present case and that the same cannot be made applicable retrospectively, fail. 14. The next contention of the learned counsel for the petitioner was that the abatement of a suit is automatic and a formal order of abatement need not be passed. To support this contention he has submitted that the provisions of sub-rule (4) inserted by the Act of 1976 in Order 22 Rule 4 of the Code could only be made applicable within 90 days of the death of the deceased defendants, and that after the expiration of the period of 90 days the suit will be deemed to have abated and there will be no question of making the applicability of provisions of sub-rule (4) of Order 22 Rule 4 and the suit has to be dismissed as abated. The contention of the learned counsel is that that two options have been given to the plaintiff within 90 days of the death of the defendants, i.e. he could either apply for bringing on record the legal representatives of the deceased defendants or he could seek the exemption from the necessity of substituting the legal representatives of the deceased defendants if other conditions mentioned in sub-rule (4) of Order 22 Rule 4 are complied with. 15. There are conflicting view of various High Courts on this legal aspect. The Orissa and the Calcutta High Courts have taken the view that the application for exemption must be filed before the abatement has taken place and not after abatement, i. e., the application should be filed within 90 days This view of the two High Courts is reported in Lakshmi Charan Panda & another and Annapurna Dens cases (supra). The Orissa and the Calcutta High Courts have taken the view that the application for exemption must be filed before the abatement has taken place and not after abatement, i. e., the application should be filed within 90 days This view of the two High Courts is reported in Lakshmi Charan Panda & another and Annapurna Dens cases (supra). It may be mentioned that by the "High Courts Amendments- applicable in Orissa and Calcutta High Courts similar provisions as are now available in the newly inserted sub-rule (4) in Order 22 Rule 4 of the Code by the Act of 1976 were applicable and the above two authorities are based upon the provisions of these High Courts amendments. The Orissa and the Calcutta High Courts took the view that the abatement takes place automatically, and does not wait for the passing of actual order by the court, and that if once abatement takes place, the discretion given to the court to invoke the provisions of Order 22 Rule 4 (4) as applicable to Orissa and Calcutta High Courts cannot be exercised. 16. The High Courts of Madras, Karnataka, Gauhati (Assam) and Patna have taken a contrary view It may be mentioned that in Madras, Karnataka and Assam the provisions similar to the presently inserted sub-Rule(4) in Order 22 Rule 4 had also been inserted by the High Courts amendments of these High Courts. There was, however, no High Court amendment in Patna High Court and the present inserted sub-rule was made applicable to it by the Code of Civil Procedure (Amendment) Act of 1976. 17. The High Courts of Madras, Karnataka, Gauhati and Patna have taken the view that the provisions of sub-rule (4) of Order 22 Rule 4 can be exercised by the court at any time during the pendency of the suit or even the appeal. 18. The Orissa case, Lakshmi Charan Panda {supra) was discussed and dissented in the cases. Velappan Pillai (supra) S. A. Rahim and another v. Rajmma and others [AIR 1977 Karnataka]; Nepal Chandra Saha (supra) and Rajnath Sahgal and others (supra). Similarly, the Calcutta case, Annapurna Devi (supra) was discussed and dissented in Rajnath Sahgal and others case (supra). 19. I have considered all the authorities referred to above and I am inclined to agree with the later view which has been taken by the Patna, Gauhati, Madras and Karnataka High Courts. Similarly, the Calcutta case, Annapurna Devi (supra) was discussed and dissented in Rajnath Sahgal and others case (supra). 19. I have considered all the authorities referred to above and I am inclined to agree with the later view which has been taken by the Patna, Gauhati, Madras and Karnataka High Courts. In Patna case, Rajnath Sahgal and others (supra) a Division Bench of that High Court has discussed the various provisions of the Code very elaborately and also the provisions of the Code of Civil Procedure (Amendment) Act of 1976. It has already been stated that the present amendment in Order 22 Rule 4 of the Code was incorporated by Act of 1976 in Patna also. After considering the provisions of section 97 of the Act of 1976, I am of the view that the Legislature has deliberately used the words "not to apply if any order of abatement has been made before the commencement of the Act" in section 73 (2) (r) of the Act of 1976. It clearly means that if the provisions of the Act of 1976 are not to be made applicable, then the court must have passed an order of abatement before the commencement of the Act. There is no dispute that the abatement takes place automatically and a formal order need not be passed, but for the applicability of section 97, it is necessary that an express order of abatement has to be made, i.e. recorded, before the commencement of the Act, It may be mentioned that although the abatement takes place automatically, still the party has a right to get the abatement set aside by an order of the court by showing sufficient cause, even after the expiry of 90 days. This clearly leads us to the conclusion that the court has every power to pass an order that the suit be dismissed as abated wholly or partially or that the abatement which had taken place be set aside and the suit be proceeded with. The power of the court to order the abatement of a suit or to set aside the abatement is not snatched away from the court till the suit is dismissed as having abated. The power of the court to order the abatement of a suit or to set aside the abatement is not snatched away from the court till the suit is dismissed as having abated. In such circumstances, if the suit is still pending and has not been dismissed as having abated by an order of the court then in that case the provisions of the Act of 1976 will be applicable and it cannot be said in the absence of a recorded order of abatement of suit that an order of abatement has been made and, therefore, the subsequently inserted sub-rule (4) by the Code of Civil Procedure (Amendment) Act of 1976 is not applicable by virtue of section 73 of the aforesaid Act of 197 , in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place." It also means that the court has a power to invoke the provisions of sub-rule (4) whenever it thinks fit", i.e. during the pendency of the proceedings/ suit. Therefore, in view of the above discussion this contention of the learned counsel for the petitioner also fails. The plaintiffs application under Order 22 Rule 4 (4) of the Code was entertainable and the same can be entertained and accepted even after the expiry of 90 days from the date of death of the defendants because no order of abatement of suit has been made by the court in this case and under Order 22 Rule 4(4) the court can exercise this power at any time during the pendency of the suit whenever it thinks fit. 20. The trial court has in the circumstances of the present case exercised a discretion in allowing the application of the plaintiff under Order 22 Rule 4 (4) and has exempted the plaintiff from the necessity of substituting the legal representatives of the deceased defendants. The petitioners learned counsel has not at all challenged the order of the Senior Sub Judge on merits and even from the record of the case, I find that the two defendants, who have died, were proceeded ex-parte and they did not file any written statement in the court meaning thereby that they had no intention of contesting the suit. The petitioners learned counsel has not at all challenged the order of the Senior Sub Judge on merits and even from the record of the case, I find that the two defendants, who have died, were proceeded ex-parte and they did not file any written statement in the court meaning thereby that they had no intention of contesting the suit. All the ingredients which are required for the applicability of Order 22 Rule 4 (4) are fulfilled in the present case and the trial court has exercised its discretion in applying this, rule in favour of the plaintiff. As such, I do not feel that there are any grounds to interfere with the discretion exercised by the trial court in the matter. 21. No other point was urged before me. 22. In view of the above discussion this revision petition fails and the same is hereby dismissed and the order of the Senior Sub Judge, dated 28th June, 1978, is upheld. The original suit is pending since 1971 and as such the trial court is directed to decide the suit at the earliest. The parties are directed to appear in the court of the Senior Sub Judge, Mandi, on 23rd June, 1980. 23. The parties are left to bear their own costs. Revision dismissed