HIREMATH, J. ( 1 ) IN the money suit filed by the appellant herein the 1st defendant is a principal debtor and the 2nd defendant a Surety. The suit is for recovery of Rs. 14. 879/- filed in the year 1980. After the suit came up for hearing the 2nd defendant died on 2-1-1982 and a memo to that effect came to be filed by the counsel for the defendants on 9-3-1982. The same was noted in the order sheet and on that date the plaintiffs counsel was absent. However the court acting on this memo posted the suit for taking steps for bringing the legal representatives of the 2nd defendant on record to 5-4-1982. On that date the plaintiffs counsel was present but the defendants counsel absent. On the request made by the plaintiffs counsel the suit was adjourned to 9-6-1982. On 9-6-1982 the Presiding Judge happened to be on leave therefore it was called in court on 7-7-1982, on which date neither the plaintiffs counsel nor the defendants' counsel was present. Steps were not taken and the court ordered that the suit against the 2nd defendant abated. It has also stated therein that later the plaintiffs counsel appeared. When the suit stood adjourned for evidence to 10-8-1982, on the next date of hearing on 30-8-1982 I. As-II and III came to be filed perhaps in office as the suit was not in the cause list on that date. I. A. II is under order 22 Rule 9 CPC for setting a side the abatement against 2nd defendant whereas i. A. III is under Order 22 Rule 4 CPC for permission to bring his legal representatives on record. The two applications however remained pending for nearly two years thereafter. It was on 27-3-1984 that I. A. IV was filed by the appellant under Section 5 of the Limitation act for condonation of delay in applying for setting aside the abatement for the reasons stated in the affidavit. Thereafter I. A. V came to be filed by the Advocate for the applicant-plaintiff on 20-7-1985 for permission to file memorandum of facts appended thereto. On hearing both sides a common order came to be passed by the trial court rejecting all these applications. ( 2 ) THE grounds on which the applications came to be rejected are firstly that I. As. On hearing both sides a common order came to be passed by the trial court rejecting all these applications. ( 2 ) THE grounds on which the applications came to be rejected are firstly that I. As. II and iii were not accompanied with an application for condonation of delay and secondly that the affidavit of the official of the Bank did not satisfy the court that he came to know of the death of the 2nd defendant at the time when he swears that he came to know. As a matter of fact according to the court below on 5-4-1982 itself the counsel for the plaintiff came to know of the date of death and therefore the delay in filing the applications after the limitation prescribed for the same had expired was not properly explained. ( 3 ) IT is urged in this Court in challenging the said order that the court below ought to have believed the affidavit statement of the official of the Bank when he stated about the date of his knowledge of the death of the 2nd defendant. Secondly though I. A. IV was filed nearly two years after the date of death was reported the application requires to state the cause for not filing the applications in time and it is no where provided as a mandatory requirement that application under section 5 should accompany the applications under order 22 Rule 4 and Order 22 Rule 9 CPC. It is also canvassed that the Manager of the bank has stated how and when he was informed by his counsel and the same cause is stated in the affidavit filed by him. The respondents' counsel however has urged that there are no bona fides of this official in as much as the information of date of death of the 2nd defendant must be deemed to have been conveyed to him soonafter their Advocate came to know of it which was on 5-4-1982. Therefore the cause shown in the affidavit in support of I. A. IV cannot be considered as sufficient cause so as to entitle the applicant to file these applications. ( 4 ) ONE of the grounds urged on behalf of the appellant is that the copy of the memo filed in court on 9-3-1982 reporting the death of the 2nd defendant was not served on the plaintiffs counsel. It is so. ( 4 ) ONE of the grounds urged on behalf of the appellant is that the copy of the memo filed in court on 9-3-1982 reporting the death of the 2nd defendant was not served on the plaintiffs counsel. It is so. However on 5-4-82 when the counsel for the plaintiff was present in court and prayed for time it must be deemed that he prayed for time to take steps for bringing the legal representatives of the deceased defendant on record and for not anything else, the reason being that on 5-4-1982 the case was posted only for taking steps. There was a delay of four months and odd in filing I. As. II and III if the time started running after the period of ninety days allowed for bringing the legal representatives of the deceased defendant had expired. In support of this I. A. IV, the Manager of the bank has sworn in his affidavit that he was not the Manager of the Bank when the suit was filed nor when the loan was advanced, their counsel was sending reports of the suit from time to time to their Branch, their counsel informed him on 8-7-82 that rajagopal the 2nd defendant was a party to the suit and that he was supposed to have died and that his legal representatives were to be brought on record. Thus it was only on that date he came to know the pendency of the suit against the Bank as till then the report of the counsel used to disclose the name of the 1st defendant Nazeer Ahmed siddiqui alone. Thereafter he made enquiries and came to know that the deceased was survived by his wife and daughter who were sought to be brought on record. Therefore the delay in filing the application for setting aside the abatement was for the reasons aforesaid and bona fide. This is all what has been stated in the affidavit. The objection of the legal representatives is that this could hardly be a ground for condoning the delay in not filing the application in time. In the memorandum of facts which also the court rejected by the same order the plaintiffs counsel stated that only on 1-7-1985 he came to know about the fact of the memo having been filed by the 2nd defendant's counsel in court. The copy thereof was not served on him. In the memorandum of facts which also the court rejected by the same order the plaintiffs counsel stated that only on 1-7-1985 he came to know about the fact of the memo having been filed by the 2nd defendant's counsel in court. The copy thereof was not served on him. I. A. V is not of any relevance in as much as it came to be filed nearly one year after even I. A. IV was filed and it was obligatory for the appellant to explain the delay in filing these I. As. II and III which was done in the affidavit filed in support of I. A. IV. If at all it was intended to inform the court that the plaintiffs counsel came to know about the memo having been filed only on 1-7-1985, still then it does not in any way assist the plaintiff- Manager to make it a ground for condonation of delay in as much as in his own affidavit he has stated that he was informed by their counsel about the date of death as far back as on 8-7-1982. For the reason that no copy was served on the counsel he might have ventured to inform the court by this memo that he came to know of it only on 1-7-1985. In view of the steps having been taken by that time, there is need to consider here when exactly he came to know about the presence of the memo filed by the respondent's counsel in court. However in the other memo dated 15-7-1985 the counsel has clarified that he was ignorant of the death of the deceased till 7-7-1982. At least according to the appellant he was informed on 8-7-1982 by his counsel. ( 5 ) FOR the proposition that the applications under Order 22 Rule 4 and Order 22 rule 9 need not be accompanied by an application under Section 5 of the Limitation act or to put it in other words an omission to file an application under Section 5 along with the applications under these provisions is not fatal, the appellant's counsel invited my attention to a Division Bench decision of this court in the case of State of Karnataka v nagappa (ILR 1985 KAR 2374) in which the learned Judges of the Division Bench were considering the scope of Order 41 Rule 3a (1) and (2 ). Unlike under Order 41 Rule 3a there is no provision under Order 22 rule 9 or 10 CPC that an application for setting aside abatement should necessarily accompany an application under Section 5 of the Limitation Act, though Section 5 is made applicable in this behalf. Rule 3a of Order 41 states that when an appeal is presented after the expiry of the period of limitation specified therefor, it shall be accompanied by an application supported by affidavit setting forth the facts on which the appellant relies to satisfy the court that he had sufficient cause for not preferring the appeal within such period. Sub-rule (2) states that if the court sees no reason to reject the application without the issue of a notice to the respondent, notice thereof shall be issued to the respondent and the matter shall be finally decided by the court before it proceeds to deal with the appeal under Rule 11 or Rule 13, as the case may be. It was observed by the Division Bench that a combined reading of sub-rules (l) and (2) of Rule 3a makes it manifest the purpose of requiring the filing of an application for condonation of delay under sub-rule (l) along with a time barred appeal, is mandatory, in the sense that the appellant cannot, without such an application being decided, insist upon the court to hear his time barred appeal. Sub-rule (1), in its very nature, is a procedural one. Even the Legislative history of sub-rule (1) does not indicate that sub-rules (1) and (2) of Rule 3a inserted in the Code were intended to award the penalty of dismissal of an appeal in the event of non-compliance of the requirements of sub-rule (1) by an appellant presenting a time barred appeal. Thus, when the sub-rule neither expressly nor contextually indicates that its non-compliance by an appllant presenting a time barred appeal, should, as a penalty, entail dismissal of his appeal, it is difficult to regard its operation as bringing about impliedly drastic results. It is also not open to construe a procedural rule of the kind intended to aid in the administration of justice as one implying the award of a severe penalty for its non-compliance. It is also not open to construe a procedural rule of the kind intended to aid in the administration of justice as one implying the award of a severe penalty for its non-compliance. Hence mandatory sub-rule (1) of Rule 3a has to be regarded by a court before which a time barred appeal is presented as requiring that court to make appellant presenting such appeal, comply with its requirements by affording him a reasonable opportunity in that regard and to have recourse to dismissal of such appeal as not properly presented, only when the appellant disregards the opportunity so afforded. In that case a time barred appeal was presented originally defectively but the defect was remedied within the time allowed by the court. It was urged on behalf of the appellant that when the rule made it mandatory this court held that non-compliance with it should not entail dismissal of the appeal. The facts in the instant case are more favourable to the appellant in the matter of filing such application in as much as there is no such manadatory provision as already stated requiring an application under section 5 to accompany the applications under Order 22 Rule 4 and Order 22 Rule 9 cpc. Therefore the fact that these applications were not accompanied by an application under Section 5 of the Limitation Act which weighed with the trial court heavily for dismissing the applications cannot be considered as fatal to these applications. ( 6 ) NOW going to the cause shown, as already stated, nearly four months and odd had elapsed after expiry of ninety days allowed by law to bring the legal representatives of the deceased on record and the court had ordered that the appeal against defendant-2 had abated. The counsel herein appearing for the appellant has even filed memorandum of facts that he informed the appellant-Bank on 8-7-1982. It is no doubt true that on the next date on 9-8-1982 he had prayed for time to take steps. Till then there was no occasion perhaps for the counsel to inform the Manager of the Bank about the death of defendant-2. The Manager of the bank says that after the counsel informed him he made enquiries and instructed to file the applications to bring these legal representatives on record. Till then there was no occasion perhaps for the counsel to inform the Manager of the Bank about the death of defendant-2. The Manager of the bank says that after the counsel informed him he made enquiries and instructed to file the applications to bring these legal representatives on record. It is also urged that the delay in filing the applications should be liberally construed as is now well settled and when the manager has sworn and the counsel has informed the court by memorandum of fact as to when the Manager came to know about the death of the deceased, the court ought to have taken a liberal view and allowed the applications. In my view there is no such inordinate delay as to throw away the applications and in view of the settled position with regard to condonation of delay, the court below ought to have condoned the delay and allowed I. As. II and III. The appeal therefore has to be allowed and it is allowed. I. As. II to IV are allowed. Delay in filing the applications is condoned and the legal representatives are directed to be brought on record and the plaint shall be amended within fifteen day in the court below after receipt of the records from this Court and the hearing shall be expedited. Appeal allowed. --- *** --- .