JUDGMENT: In this Rule the propriety and legality of order No. 137 dated September 22, 1973 made by the learned Munsif are challenged. 2. The facts relevant for purposes of this case, stated succinctly, are as follows :- The plaintiff No.4 assigned a part of the suit land in favour of the present petitioner by a deed of gift dated 21.1.72 and that was done during the pendency of the suit in question. Later, the plaintiff No 4 died. The precise date of his death is not known. Admittedly, however, the plaintiff No.4 died before May 21, 1976. In these circumstances, the petitioner made an application under Order 22 Rule 10 of the Code of Civil Procedure praying for leave enabling him to continue the suit in his capacity of an assignee as aforesaid. 3. The learned Munsif rejected the application under Order 22 Rule 10 and in so doing he relied on the decision in Kedar Nath & ors. v. Khaitan Sons & Co. AIR 1959 Cal. 368 . According to the learned Munsif that decision is an authority for the proposition that it is not correct to say that the right of an assignee to apply under Order 22 Rule 10 continues notwithstanding the death of the assignor-plaintiff and the abatement of the suit. The learned Munsif further observes that it is also decided in the aforesaid case that if the suit already abated, there will be no suit which may be continued. There is no doubt that according to the said Calcutta decision when a suit wholly abates there can be no question of that suit being continued by an assignee in accordance, with the provisions of Order 22 Rule 10. There must be a termination of the suit itself. In cases where the suit wholly terminates, there remains no suit which can be continued. But in cases where there are more plaintiffs than one and on the death of one of those plaintiffs the suit abates in respect of that plaintiff by reason of failure to substitute the heirs and legal representatives of that plaintiff within the period of limitation, it cannot be said that the suit abates as a whole. But in cases where there are more plaintiffs than one and on the death of one of those plaintiffs the suit abates in respect of that plaintiff by reason of failure to substitute the heirs and legal representatives of that plaintiff within the period of limitation, it cannot be said that the suit abates as a whole. In such cases, even though so far as one of the plaintiffs is concerned, the suit stands abated there is no termination of the suit as a whose and an assignee of the deceased plaintiff may very well apply for leave under Order 22 Rule 10. The words "other cases" appearing in Order 22 Rule 10 make it clear that the provisions of Rule 10 apply to cases of assignment, creation and devolution of interests other than those mentioned in Rules 2,3,4,7 and 8 of Order 22. Thus, an assignee of the interest of the plaintiff cannot claim to be br0ught on record as his legal representative but he may very well ask for leave under Order 22 Rule 10 enabling him to continue the suit in his capacity as an assignee. In the present case, there are more plaintiff than one and only plaintiff No.4 died during the pendency of the suit Admittedly, the period within which substation of his legal representatives is to be made already expired at the time when the application under Order 22 Rule 10 was made. Accordingly, at the date of such application the suit abated so far as the plaintiff No. 4 is concerned but the suit did not on that account terminate wholly. Thus, in such circumstances, it cannot be said that there is no suit which may be continued by the petitioner. According to the principle laid down in the said Calcutta case. If the suit stood wholly abated there would he no suit existing which would be continued by the assignee. An application on for substitution of the heirs and legal representatives of a deceased plaintiff has to be made within 90 days of the death and on the failure of the legal representatives to apply for substitution within such time the suit will stand abated. But the right to apply for, leave under Order 22 Rule 10 is a pending right which accrues from day-to-day and cannot therefore be barred by limitation. But the right to apply for, leave under Order 22 Rule 10 is a pending right which accrues from day-to-day and cannot therefore be barred by limitation. This is alia the decision of the Full Bench of Kerala High Court rendered in Goutami Devi Sitamany v. Madhavan Shivarajan AIR 1977 Kerala 83. There, it is aid down that in view of the scheme of Order 22 Rule 10 an assignee can make an application for leave to continue the suit so long as there is a suit, so far as it concerns the assignee, on the file of the Court and that in a suit which is not subsisting there is no scope for seeking continuance. 4. The learned Munif also referred to the decision in Jamma Rai & ors, v. Chandradip Rat & ors. AIR 1961 Pat 178 . The decision therein has no application to the facts and circumstances of the present case. The legal representatives. it has been rightly pointed out in that decision, cannot claim to be brought on record by applying under Order 22 Rule 10, for, they yare to apply under the provisions of Order 22 Rule 3 and in the event of their failure to apply within the period of limitation the suit or appeal, as the case may be, will stand abated. The provision of Rule 10 of Order 22 as already pointed out, would apply to cases of assignment and devolution other than those mentioned in the earlier Rules of Order 22 namely, Rules 2,3,4,7 and 8, On the other hand, a transferee during the life-time of a deceased person cannot be called a legal representative and such transferee has no right, therefore to be brought on record under Rule 3 Order 22. He may, however, app1y for being brought on the record according to the provisions of Rule 10 of Order 22. This was also the view taken in Soya Ram & ors. v. Bahadur Singh & ors. AIR 1073 HP 44. 5. In the circumstances aforesaid the impugned order is set aside and the application under Order 22 Rule 10 of the Code of Civil Procedure is allowed. 6. The Rule is accordingly made absolute. There will, however, be no order as to costs. Rule made absolute.