JUDGMENT N.N. Mithal, J. - This is an appeal by the Defendants against an order passed by the lower appellate Court allowing the substitution application filed by the Plaintiff-Respondents to bring on record the legal representatives of deceased Ram Adhar. 2. According to the facts disclosed in the case, suit No. 83 of 1970 was filed by the Plaintiffs-Respondents for injunction. That suit was, however, dismissed on 28.3.1974 against which appeal No. 90 of 1974 was filed. One of the Defendants-Respondents in the Court below was Munshi who died during the pendency of the appeal. His three sons were brought on record including one Ram Adhar. It is said that this Ram Adhar also died on 1.3.1977 as per the version of the Appellant before me. The Plaintiffs-Respondents, however, contend that he had died on 16.4.1977 but they remained absolutely in the dark about his death. For the first time, in early September, 1978, the fact of his death was disclosed by the Appellant's Counsel and, therefore, an application was immediately moved on 13.9.1978 along with an application for setting aside abatement and for condonation of delay in moving that application. By the impugned order, the said application has been allowed and the Court has believed the contention of the Plaintiffs-Respondents that the deceased Ram Adhar was living in another village 10 miles away and that the Plaintiffs could have no notice of his death and, therefore, they were held to have been prevented by sufficient cause from not moving an application for setting aside the abatement within time. Aggrieved by this order, some of the Defendants have come up in appeal. 3. The first question which arises for consideration is about the very maintainability of the appeal. It was submitted that the office had initially taken an objection in this behalf at the time of admission of appeal itself but the appeal was directed to be admitted subsequently. Once again Sri. R.R. Yadav, learned Counsel appearing for the Appellants, has placed reliance on a Full Bench decision of this Court in Habibur Rahman Khan v. Pooran 1966 AWR 226 , and he relies upon a stray observation made by the Bench where it was stated that an order refusing to set aside the abatement or granting an application for setting aside the abatement has been made appealable. The said observation however, was made in a case in which that point did not at all arise for decision. A perusal of the facts of that case would reveal that one of the Defendant had died during the period when the arguments were being heard. Before the hearing of the argument finally, the surviving Defendants brought to the notice of the Court that one of the Defendants had died and the suit should be dismissed as it had abated as a whole. An objection to this application was filed and an application for substitution of legal representatives was also made. In that application, no prayer for setting aside the abatement was made, however, at a latter stage, an application for amendment of this application was made and a prayer for setting aside the abatement was also made thereunder. This application for amendment was allowed on payment of cost which was, however, not paid. When the various applications came up for orders before the trial Court, the Court held that the suit had abated against the deceased Defendant and because the nature of the relief was joint against all the Defendants, the whole suit was ordered to have abated. An appeal against this order was filed in the High Court and the matter was referred to the Full Bench as there was a conflict between two Division Benches of this Court. The only point that was urged was whether, on the facts of the case, the suit could not proceed even against the surviving Defendants was correct or incorrect ? Thus the point which had come up before the Full Bench for decision was only about the abatement of the suit only against the deceased Defendant or as a whole and no question about the maintainability of the appeal was ever convassed before it. While considering that matter, the Full Bench was in passing making a reference to the provisions contained in the CPC regarding setting aside the abatement of a suit. In this connection, the Court made the aforesaid observation. However, Order 43 Rule 1 which deals with appeal from order only provides for an appeal under Clause (b) thereof against following orders only: An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of the suit. 4. In this connection, the Court made the aforesaid observation. However, Order 43 Rule 1 which deals with appeal from order only provides for an appeal under Clause (b) thereof against following orders only: An order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of the suit. 4. It appears that since the matter now in controversy before me was not directly involved before the Full Bench, due to some oversight the aforesaid observation has been made. The observation does not, however, show that the matter was actually considered by the Bench but shows that it was merely referring to the provisions contained in the Code of Civil Procedure. If there is obvious mistake, the said observation cannot be said to be binding and must be treated to be merely obiter dicta. In the circumstances, the appeal is not legally maintainable and is liable to be dismissed on this ground alone. 5. However, Sri. Yadav has addressed me on merits also and after considering the entire matter, I am of the opinion that on merits also, the Appellant has no case and I consider it desireable to deal with merits also. 6. The main contention raised on behalf of the Appellant is that after a period of 90 days allowed by the Limitation Act for making an application for setting aside the abatement of a suit or appeal automatically takes effect and it does not require any formal order by the Court. However, Rule 9 of Order XXII gives a further opportunity to the defaulting party to apply for setting aside the abatement within a further period of 60 days, after satisfying the Court that he was prevented by sufficient cause from continuing the suit. Section 5 of the Indian Limitation Act has been specifically made applicable to such applications. What Sri. Yadav has tried to contend is that the Court below has wrongly approached the problem by taking the date of knowledge of death as the starting point for the purposes of an application for setting aside the abatement under Rule 9 of Order XXII Code of Civil Procedure. In this connection, he has relied upon the case of Bhubaneswari Bewa and Others Vs. In this connection, he has relied upon the case of Bhubaneswari Bewa and Others Vs. State of Orissa and Another, AIR 1979 Ori 171 where a learned Single Judge of that Court was dealing with a matter under Order XXII of the Code and held that a mere allegation that the Appellants did not come to know about the death of the deceased Respondent till they were informed by the other side does not constitute sufficient cause. They have to prove that they were diligent and vigilant about the defence by establishing facts which prevented them from knowing about the death earlier. 7. It is undisputable that the period of limitation for making an application for substitution starts not from the date of knowledge, about the death but from the date of death of the deceased Respondent. The period for making an application for setting aside abatement also starts from the date of abatement and has no relation with the date of knowledge about the death of the deceased party. What is to be seen, however, is whether the applicant has made out sufficient ground for want of his knowledge about the date of death of the deceased party and whether any delay in making the application can be condoned on grounds stated in the application u/s 5 of the Limitation Act. It is true that a mere allegation that the applicant was not aware about the date of death until this fact was brought to his notice by the other party is not by itself sufficient ground for condoning the delay. It is also true and undisputed that under Order 22 Rule 4 CPC the Plaintiff or Appellant is under a duty to be vigilant about the party to the proceedings and to bring on record legal representatives as and when death takes place during the pendency of the litigation. This, however, does not mean that the Plaintiff or Appellant is supposed to wander about wherever the Defendant or Respondent may be and keep a vigil about their whereabouts. All that is necessary is that there should be reasonable amount of care and effort on the part of the Appellant to know if a party to a lis had died or not. All that is necessary is that there should be reasonable amount of care and effort on the part of the Appellant to know if a party to a lis had died or not. The Courts have to be pragmatic aboutt his and it would not be proper to expect a very strict proof from a party about the quality and nature of the vigil kept by him. 8. The Orissa case, however, was quite distinct on facts from the present case. In that case, the suit filed by the Respondent had been decreed against the Gaon Sabha and the Sarpanch. During the pendency of the appeal, the Plaintiff had died but his legal representatives were not substituted within time and the appeal was abated. The two points that were raised before the Court were that the Sarpanch had no knowledge about the death of the Respondent and secondly even if the Sarpanch had such knowledge, the same could not be attributed to be knowledge of the Gaon Sabha. It was found as a fact that the Sarpanch was a neighour of the deceased Plaintiff and that he had participated in his Shudhi ceremony. It was, therefore, found that the Sarpanch had every reason to know about the death of the Respondent unless by his own acts, he kept himself in dark about that fact. It was also held that knowledge of the Sarpanch in the circumstances must be deemed to be knowledge of the Gaon Sabha also as the affairs of the Gaon Sabha were being looked after by the Sarpanch himself. It was in these circumstances that the Court held that the grounds for setting aside the abatement had not been made out and the order of the lower appellate Court dismissing the appeal as abated was maintained. 9. The other case on which some reliance has been placed is of Nripati Nath Dutt and Others Vs. Smt. Rajlakshmi Biswas and Others, AIR 1978 Cal 394 . 9. The other case on which some reliance has been placed is of Nripati Nath Dutt and Others Vs. Smt. Rajlakshmi Biswas and Others, AIR 1978 Cal 394 . That case, however, has no applicability to the facts of the present case inasmuch as there the applicants did not have any knowledge about the pendency of the suit itself and, therefore, it was held that since the parties had no knowledge about the pendency of the suit itself, the mere knowledge about the death was of no avail for making an application for substitution or for setting aside the abatement which, was within time from the date of knowledge of the pendency of the suit. 10. Finally reliance is placed on Union of India (UOI) Vs. Ram Charan and Others, AIR 1964 SC 215 . However, in that case also, the Supreme Court observed as under: The Court, in considering whether the Appellant has established sufficient...the dispute between the parties and because if the abatement is set aside, the merits of the dispute can be determined while, if the abatement is not set aside, the Appellant is deprived of his proving his claim on account of his culpable negligence or lack of vigilance. 11. The Supreme Court, however, went further to struck a line of caution in the following words: This, however, does not mean that the Court should... deceased or for setting aside the abatement. It is true, as contended, that it is no duty of the Appellant from time to time about the health or existence of the opposite party, ...specially when the correctness of those reasons is challenged by the legal representatives of the deceased who have secured a valuable right on the abatement of the suit. 12. It is for the Appellant, in the first instance, to allege why he did not know of the death of the Respondent earlier or why he could not know about it despite his efforts, if he had made any efforts on having some cause to apprehend that the Respondent might have died. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the Appellant had sufficient cause for not making an application to bring the legal representatives, of the deceased Respondent earlier on the record. 13. The correctness of his reasons can be challenged by the other party. The Court will then decide how far those reasons have been established and suffice to hold that the Appellant had sufficient cause for not making an application to bring the legal representatives, of the deceased Respondent earlier on the record. 13. Judging the facts of the present case in the light of the above observations of the Supreme Court, it will be found that the Appellant in the case had succeeded in proving that he had in fact no notice about the death and had good reason for not knowing the same. The deceased Ram Adhar was brought on record as one of the heirs of the deceased Respondent Munshi. He was shown to be residing in the same village as his father but the summons was not served on him but was received by some one else on his behalf. He ultimately filed his appearance but clearly mentioned therein that at the relevant time he was residing in another village ten miles away. The death certificate of the village also shows that he had died at that place and there was also evidence rebutting the case of the Appellant that Ram Autar had died in village Sarai Misrani where his funeral as well as thirteenth day ceremony had been performed. It is contended for the Appellant that although in his counter-affidavit, it was stated that the funeral as well as the thirteenth day ceremony had been performed in village Sarai Misrani, yet in the rejoinder- affidavit, only the fact of death and funeral ceremony having taken place in village Sunderban alias Katahban was stated and it was not denied that the thirteenth day ceremony also had taken place at village Sunderban. In my opinion, this argument has no substance. Basically what the Appellant wanted to allege was that the entire ceremony had taken place in village Sarai Misrani which was effectively controverted by the Respondent by stating that Ram Adhar had died, and his funeral and other ceremony had taken place at village Sunderban. The mere fact that specifically nothing was stated about the thirteenth day ceremony cannot mean that the aforesaid fact had not been effectively controverted. The mere fact that specifically nothing was stated about the thirteenth day ceremony cannot mean that the aforesaid fact had not been effectively controverted. The Court below has examined various affidavits and other materials placed on record and has come to a conclusion that the Respondents had no occasion to know about the death and, therefore, the delay in making the application for setting aside the abatement had been rightly condoned. 14. In view of the above, I do not find that there is any merits in the appeal either in law or on facts. The same is accordingly dismissed with costs.