JUDGMENT N.N. Sharma, J. - This application is dated 29.10.1985 and seeks the impleadment of Arun Kumar Gupta and his two brothers and their mother etc. enumerated in para No. 4 of the application as legal representatives of deceased respondent 1 Sri Lalli Prasad Gupta under Order 1, Rule 10, sub-rule (2) of the Civil Procedure Code 2. It appears that this second Appeal was directed against judgment and decree of Sri C.P. Misra Learned III Addl. District and Sessions Judge, Varanasi recorded in Civil Appeal No. 469 of 1980. Plaintiffs' suit for declaration that business of Krishna Lime Company, Senpura, Varanasi was joint family business of plaintiff and defendant 4 Preme Shanker Angihotri and defendant 1 to 3 viz., Lalli Prasad Gupta, Kundan Lal and Shitla Prasad Gupta, Kundan Lal and Shital Prasad had no concern with its land belonged to the firm Krishna Lime Companay, Senpura, Varanasi and ejectment of defendant 1 from the aforesaid house in suit was dismissed by both the courts below. 3. The impugned judgment was dated 30.3.1984 Report of Stamp Reporter on the memo of appeal was obtained on 3.5.1984 showing limitation in filling the appeal up to 26.7.1984. 4. A caveat has been filed on behalf of respondent 1, Lalli Prasad Gupta, (Defendant 1 in the suit) by Sri Murlidhar, Advocate on 26.4.1984. The appeal was admitted by my learned brother Sri Umesh Chandra, J. on 12.12.1984. It transpired that respondent 1 Sri Lalli Prasad Gupta had died on 8.7.1984 before the admission of this appeal. The contention raised on behalf of heirs of respondent No. 1 was that the appeal had been admitted against a dead person which was invalid. 5. It appears that an application for leave to appeal the legal representatives had been moved by the appellants on 10.8.1984 which had not been disposed of at the time of admission of this appeal on 12.12.1984 by my learned brother Sri Umesh Chandra, j. although it has to be disposed of at the time of admission of appeal vide order dated 13.5.1984. 6. That application dated 10.8.1984 filed under Chap. 6. That application dated 10.8.1984 filed under Chap. X, R-2 of the High Court Rules was disposed of after contest by me on 4.10.1985 and it was held that the appeal could not be said to have been validly admitted against respondent 1 a dead person and the prayer in the said application to bring heirs or respondent 1 on record was thus rejected. 7. The present application was filed on 29.10.1985 with the allegations that it was expedient in the interest of justice to implead the legal representatives of deceased respondent 1 under O. 1, R. 10, sub-rule (2), C.P.C. The aforesaid provision reads as below : "10. Suit in name of wrong plaintiff-(1) where a suit has been instituted in the name of the wrong person as plaintiff or where it is doubtful whether it has been instituted in the name of the right plaintiff, the Court may at any stage of the suit, if satisfied that the suit has been instituted through a bona fide mistake, and that it is necessary for the determination of the real matter in disputed so to do, order any other person to be substituted or added as plaintiff upon such terms as the Court thinks just. (2) Court may strike out or add parties : The Court may at any stage of the proceedings, either upon or without the application of either party, and on such terms as may appear to the Court to be just, order that the name of any party improperly joined, whether as plaintiff or defendant, be struck out, and that the name of any person who ought to have been joined, whether as plaintiff or defendant, or whose presence before the Court may be necessary in order to enable the Court effectually and completely to adjudicate upon and settle all the questions involved in the suit, be added...." 8. This prayer was opposed on behalf of the respondents. 9. I have heard learned counsel for the parties, on behalf of the applicants reliance was placed upon Bhagwan Swaroop v. Mool Chand reported in, AIR 1983 SC 355 , It appears that in that case a preliminary decree for partition was drawn. That decree was against respondents 1 and 2. During appeal respondent 1 died and his legal representatives were not brought on record for more than three years. That decree was against respondents 1 and 2. During appeal respondent 1 died and his legal representatives were not brought on record for more than three years. Afterwards an application was filed by appellant under O. 22, R. 4 C.P.C. and other application was filed by legal heirs of respondent 1 under O. 1, R. 10, C.P.C. These applications were rejected by High Court which held that the appeal abated as a whole. It was observed by the Supreme Court that such hyper-technical approach which could result in miscarriage of justice could not be encouraged. Substantial justice has to be done between the parties and technical rules of procedure should not be given precedence over doing substantial justice in Court. 10. Obviously in that case the appeal was not filed against a dead respondent and the legal representatives of respondent 1 himself prayed for addition of their names at the stages of final decree. 11. Next authority relied upon by learned counsel for the applicant has been reported in Harjeet Singh v. Raj Kishore, AIR 1984 SC 1238 , In that case second appeal was filed against respondent including respondent No. 3 who died pending appeal. An application for substitution of his heirs was filed on Oct. 10, 1976 although respondent 3 had died on July 6th 1976. It was held that delay in filing application after 90 days but before the expiry of 60 days within which application to set aside abatement had to be moved was allowable. 12. Next authority relied upon by learned Advocate for the applicants has been reported in O.P. Kathpalia v. Lakhmir Singh (dead), AIR 1984 SC 1744 , It related to an eviction suit under Delhi Rent Act. An application for condonation of delay under S. 5 of Limitation Act was allowed and it was held that there was sufficient cause for condonation of delay. The abatement of appeal could not be ordered and the legal representatives of deceased respondent landlord could be validly substituted. 13. The next authority relied upon has been reported in K.B. Agrawala v. Smt. Chandrawati, AIR 1976 All 15 , That was also a case of substitution of legal representatives on the death of a party pending proceedings against him. 14. 13. The next authority relied upon has been reported in K.B. Agrawala v. Smt. Chandrawati, AIR 1976 All 15 , That was also a case of substitution of legal representatives on the death of a party pending proceedings against him. 14. Learned counsel for the applicants also relied upon Bala Prasad v. Radhey Shiam reported in, AIR 1934 All 25 , A suit filed against several defendants, one of whom was dead at the time of filing the suit. It was held that as the dead person was not the sole defendant in the suit the court in exercise of its discretionary power under O. 1, Rule 10. C.P.C could bring on record his legal representative. 15. Next authority has been reported in Lucknow Civil Decisions, 1985 Smt. Asharif v. Jaibal Singh at Page 87 In that case an application for condonation of delay in taking steps for substitution and setting aside abatement was held to be liberally construed. 16. The next authority relied upon by learned Advocate for applications has been reported in Rafiq v. Munshi Lal, AIR 1981 SC 1400 , In that case the appeal had been dismissed for default of appellant's counsel under O. 41, R. 17, C.P.C. It was held that a party should not suffer for inaction of his counsel. Obviously this ruling in not in point. 17. The next authority relied upon by learned counsel for the applicants has been reported in Khalil Ahmad, AIR 1974 All 422 , It was observed in that case that O. 1, R. 10. sub-r. (2) empowers a court to implead any person as a party when such impleadment is necessary to enable the court to effectually adjudicate upon the questions involved in the suit. The inaction of plaintiffs to implead or bring on record a person as defendant could not affect the court's power under this Rule. 18. It appears that the aforesaid authority has been overruled by A Full Bench Decision reported in Smt. Mahendra Kaur v. Hafaz Khalil, in 1983 All LJ 1305, In that case there has been an abatement of suit on account of failure to bring legal representatives of deceased on record. The proceedings had abated and so it was held that representatives of deceased party could not be substituted in exercise of discretion under O. 1, R. 10. The proceedings had abated and so it was held that representatives of deceased party could not be substituted in exercise of discretion under O. 1, R. 10. sub-r. (2), C.P.C. If such power was permitted to be exercised under that provision it would necessarily result in nullifying the consequence of abatement in which the heirs were not on record and no explanation had been offered for not doing so. It was observed at p. 1312 in para 34 : "From what we have said above, we find it impossible to hold that resort to O. 1, R. 10(2) can be had by a party when the suit has abated on account of his failure to bring the legal representatives of the deceased on the record and when the application for setting aside the abatement is not allowed. I am bound by the said view. 19. In Sisir Kumar v. Manindra Kumar reported in, AIR 1958 Cal 681 it was laid down that sub-r. (2) of O. 1, R. 10, C.P.C. does not contemplate substitution. It is applicable for addition of a party who is not a plaintiff or defendant in the suit. The case of mere substitution was quite distinct from addition of a party. 20. In Banke Bihari Lal v. Mahadeo Prasad reported in, AIR 1953 All 97 the appeal was filed against a party who had died prior to the filing of the appeal and it was held that no order for substitution of his legal representatives could be recorded under O. 22, R. 9, C.P.C. 21. On a careful consideration of the facts and authorities aforesaid I find that this application is liable to rejection for the following reasons :- 1. A comparison of the prayers incorporated in this application as well application under Chap. 10, R. 2 of the High Court Rules disposed of by me would go to disclose that present application is simply designed to nullify the effect of my earlier order d/-4.10.1985 which has the force of res judicata as was pointed out in Satyadhyan Ghosal v. Smt. Deorajin Debi reported in AIR 1960 SC 941 , None of the authorities cited on behalf of the applicants contemplates such case in which an application under Chap. X, R. 2, of the High Court Rules having been rejected addition of the legal representatives could have been done by such circumvention of rule or law. X, R. 2, of the High Court Rules having been rejected addition of the legal representatives could have been done by such circumvention of rule or law. The principle of res judicata is applicable even to interlocutory orders. 2. Lalli Prasad Gupta was not alive at the time of admission of second appeal against him and his legal representatives were not substituted in his place along with application as contemplated under Chap. X, Rule 2, of the High Court Rules. It has been pointed out in the earlier order that such application for leave to make such legal representative parties to the appeal should be presented along with memorandum of appeal. That had not been done. 3. It is not an application for setting aside abatement of the appeal against respondent 1 under O. 22, R. 9, C.P.C. when there is a specific provision for substitution of a party and that had not been availed of and the application under Chap. X, R. 3 of High Court Rules stands rejected, there is no question of impleadment of legal representatives of deceased-respondent 1 who was already dead at the time of abatement of appeal against him in exercise of discretionary powers under O.1, R.10, C.P.C. Such discretionary power cannot be exercised to override a plain provision of O. 22, R. 9, C.P.C. 22. In this view of the matter this application is rejected and let the fact be brought to the notice of the Bench hearing the appeal.