SINGH, J. ( 1 ) THIS second appeal has been preferred by the legal representatives of the plaintiff and by defendant Nos. 3 to 19 against the judgment and decree passed by the Civil judge, Mangalore in Regular Appeal No. 122/1975. The main grievance of the appellants in the appeal is against that part of the judgment and decree of the learned Civil Judge, whereby it was held that Schedule-C properties were the self-acquired properties of defendant No. 1 and were therefore not available for partition. It is not necessary to go into the detailed facts of the case since the only submission urged before me was that the substitution of the legal representatives of defendant No. 2 during the pendency of the appeal was contrary to law and vitiated the judgment and decree passed by the appellate Court. ( 2 ) ONE Muthanna Shetty - plaintiff filed O. S. 230/69 for partition of Schedule B,c,d and E properties. It was contended that the plaintiff and defendants constituted an undivided Aliyasanthana family and the schedule properties belong ed to such family. He therefore prayed that a decree for partition be passed and the properties be divided into 20 equal shares by metes and bounds. He also prayed for other reliefs, such as accounting etc. , defendant No. 1 contested the suit and inter alia claimed that schedule-C properties were his self-acquired properties and therefore could not be partitioned. Defendant No. 2 did not appear to contest the suit. The other defendants also supported the plaintiff. There was no dispute that schedule-B and E properties belonged to the family and there was no objection by the parties to the partition of those properties. The real dispute was only in relation to schedule-C and D properties. ( 3 ) THE learned trial Judge held that schedule-C properties belonging to the family and therefore was also liable for partition alongwith Schedule-B and E properties. So far as Schedule-D properties were concerned, he held that the plaintiff's family was entitled to only the land value of the compensation amount of the properties, which had been acquired and that defendant No. 1 was entitled to the improvements effected by him over the family properties. The trial Court therefore decreed the suit to the extent indicated above. It may be noticed defendant no. The trial Court therefore decreed the suit to the extent indicated above. It may be noticed defendant no. 1 disd during the pendency of the suit and his legal representatives were brought on record as defendants-20 to 23. ( 4 ) AN appeal being R. A. No. 122/1975 was preferred by the legal representatives of defendant No. 1, namely, defendant nos. 20 to 23. That appeal was disposed of by the learned Civil Judge, mangalore, by his judgment and decree dated 27th Nov. 1978. He partly allowed the appeal holding that Sch. C properties were the self-acquired properties of defendant no. 1 and could not therefore be partitioned. In regard to Schedule-C properties, he set aside the decree passed by the trial court and held that defendant No. 1 was not entitled for the improvements effected on the family properties. Against the judgment and decree passed by the Civil judge, the instant second appeal has bean preferred by the legal representatives of the plaintiff and by defendants-3 to 19. ( 5 ) IT appears that during the pendency of the appeal before the learned Civil judge, the plaintiff and defendant No. 2 died. By order dated 11-1-1978 the learned Civil Judge allowed the application for substitution and brought on record the legal representatives of the plaintiff and defendant No. 2. ( 6 ) THIS appeal was admitted for hearing on 18th of June, 1979 and the Court formulated three substantial questions of law, which arose for consideration in the appeal. The questions formulated are as under :-" (1) Whether the court-below had jurisdiction to decide whether the 'c' schedule properties which are the chal- gani properties are the joint family properties or the separate properties of the first defendant ? (2) Are not the appellants entitled to be heard on merits on I. A. I filed in the court-below and if they are entitled to be heard, is not the order now passed disposing of I. A. I on merits vitiated? (3) Whether on the admitted facts of this case the court-below can hold that the appeal has abated partially or that the entire appeal has abated?". (3) Whether on the admitted facts of this case the court-below can hold that the appeal has abated partially or that the entire appeal has abated?". Learned Counsel for the appellants did not press before me the first question formulated by this Court, namely, the question as to whether the court below had jurisdiction to decide whether 'c' schedule properties were the joint family properties or the separate properties of the first defendant. It appears that the aforesaid question is now well-settled and it has been held that civil courts have jurisdiction to decide such a question. Learned Counsel. for the appellants therefore submitted that he would only urge the submission that the appellate Court erred in law in bringing on record the legal representatives of defendant No. 2 and that it should have held that the entire appeal abated because the legal representatives of defendant No. 2 were not brought on record in'accordance with law. ( 7 ) HAVING regard to the only submissionurged before me, it is necessary to refer to the relevant facts relating to the substitution of the legal representatives of defendant No. 2. 1 have already observed that defendant No. 2 did not file a written statement nor did he contest the suit. The appeal before the Civil Judge was filed by the legal representatives of defendant No. 1 on 20th October, 1975. It appears from the record that when notices were issued in the appeal to the respondents, it was found that the second respondent (defendant no. 2) had died. This appears from the order sheet of the Court dated 11-6-1976. It is not in dispute that defendant no. 2 died on the 6th of February 1976. The appellants filed an application being i. A. I on 26-8-1976 stating that they had come to know about the death of defendant no. 2 only 30 days back and that the legal representatives of defendant No. 2, who was respondent No. 2 in the appeal, should be brought on recoid. Notices were issued to the proposed legal representatives of defendant No. 2. It also appears that the plaintiff, who was respondent No. 1 in the appeal was represented by a Counsel and he took notice Of i. A. No. I. In fact, he filed objections to i. A. No. r stating that defendant No. 2 had died long ago and that the appeal had abated. It also appears that the plaintiff, who was respondent No. 1 in the appeal was represented by a Counsel and he took notice Of i. A. No. I. In fact, he filed objections to i. A. No. r stating that defendant No. 2 had died long ago and that the appeal had abated. The legal representatives of defendant no. 2 did not appear despite service of notice upon them. On 11-8-1977 it was reported that the plaintiff (respondent No. 1 in the appeal) also died. An application being I A II was filed for substitution and for bringing on record the legal representatives of the plaintiff (respondent No. 1 in the appeal) on 9-9-77. It also appears from the order sheet dated 12-12-1977 that his legal representatives received notices by personal service. They however did not appear despite receipt of notices. ( 8 ) THEREAFTER on 11-1-1978 I. A. Nos. I and I) came up for hearing before the Court. Since no one objected, those i As, were allowed and the legal representatives of the plaintiff (respondent No. 1) were brought on record as respondent nos. 20 and 21 while the legal representatives of defendant No. 2 (respondent-2 in the appeal) were brought on record as respondents-29 to 34. Notices then were sent to the substituted legal representatives on the appeal memo. On 4th of september, 1978 the legal representatives of the plaintiff (respondent No. 1 in the appeal) appeared and contended that the appeal had abated I. A. No. VI was filed by them on 12-10-78 contending that the appeal had abated on account of the death of defendant No. 2 and failure to bring on record his legal representatives within the time stipulated by law. The learned Civil judge pronounced the judgment on 27th of November, 1978 partly allowing the appeal. A submission was urged on behalf of the plaintiffs before me at the time of hearing of the appeal that the Court should hold that the appeal had abated because the legal representatives of defendant No. 1 had not been brought on record in accordance with law. The learned Civil Judge negatived the contention and held that the appeal had not abated. It is the correct ness of this finding, which has been challenged before me in appeal. The learned Civil Judge negatived the contention and held that the appeal had not abated. It is the correct ness of this finding, which has been challenged before me in appeal. ( 9 ) IT must be noted that an application was filed for bringing on record the legal representatives of defendant No. 2, who had died during the pendency of the appeal. It is also not in dispute that notices were sent to the legal representatives of defendant No. 2 in the substitution matter. It is also not in dispute that the advocate appearing for the plaintiff, who was respondent No. 1 in the appeal, took notice of the application and had filed his objections. Even before the said application for substitution could be ordered, the plaintiff died and steps were taken for bringing on record his legal representatives. Though notices were sent to the legal representatives of the plaintiff, who was respondent No. 1 in the appeal, they choose not to appear to contest the appiication. Since there was no opposition to the applications filed for substitution, the court allowed those applications on 11-1-1978. It cannot therefore be said that substitution had been ordered without notice to the parties concerned. Notices were in fact issued, but the parties chose to remain absent. ( 10 ) LEARNED Counsel for the appellants contended before me that the application filed for substitution of the legal representatives of defendant No. 2 did not make a prayer for setting aside the abatement. It was therefore cotended that in the absence of such a prayer, the Court could not have granted that application. It is not possible to accept the submission urged on behalf of the appellants. appears to me to be well settled that even if no prayer is made in an application for substitution of legal representatives of a deceased respondent for setting aside abatement, such an application for substitution may in substance be treated as an application for setting aside abatement. There is consensus of judicial opinion on this question and I may refer to only some of the decisions in this regard, namely, (1) AIR 1977 Delhi 38 (Un/en of India v kundan) (2) AIR 1971 P. and H. 243 (Bachan Ram v Gram Panchayat) (3) air 1977 Allahabad 551 (Shakuntala v banwari Lai) and (4) AIR 1962 Orissa 95 khati v Mirza Hossain ). I may however notice a disenting decision on this question by the learned Additional Judicial commissioner of Goa, Daman and Diu* in s. R. Gaitondi v J. J. Fonseca ( AIR 1976 Goa 11 ). The learned Judicial commissioner did not notice the judgments to which I have referred to earlier. In any view of the matter, I prefer the reasoning of the Delhi, Punjab and Haryana, Allahabad and Orissa High Courts, which have taken the view that the failure to make a prayer for setting aside abatement is not fatal, and the Court may in its discretion grant the application for substitution, which would amount to setting aside the abater ment. In the instant case, the application for bringing on record the legal representatives of defendant No. 2 stated that the applicants had come to know about his death only 30 days back. The Court therefore had material before it on which it could condone the delay and set aside the abatement. If it exercised its discretion by doing so, there appears to be no justification for interfering with such exercise of discretion. ( 11 ) THERE is still another reason why the contention of the appellants must fail. Assuming that a substitution was wrongly ordered, can the appellants be permitted to challenge that order in appeal? In my view, they cannot be permitted to do so because the proper course for them was to oppose the application for substitution and not to remain absent despite service of notice. It is no ground for the appellants to contend that in the mean time the plaintiff had also died and the notices had been issued to his legal representatives as well. Since two of the respondents had died and notices had been issued to their legal representatives, they could have appeared in response to the notice and opposed the application for substitution. They failed to do so, and having done so, they cannot now find fault with the order of the Court granting the application for substitution. I am supported by an authority of the Calcutta High Court in J. Blbl, v Satish chandra Bhattacharya (AIR 1924 Cal. 633 ). They failed to do so, and having done so, they cannot now find fault with the order of the Court granting the application for substitution. I am supported by an authority of the Calcutta High Court in J. Blbl, v Satish chandra Bhattacharya (AIR 1924 Cal. 633 ). If the appellants had opposed the application for substitution of the legal representatives of defendant No. 2 on the ground that no prayer for setting aside abatement had been made, the applicants could have made such an application and prayed for condonation of delay. There is another reason why the appellants cannot be permitted to urge this submission before this Court. If they had appeared and opposed the application for substitution of the legal representatives, and the application was rejected, the aggrieved party could have preferred an appeal under Order 43 Rule 1 (k) of the Code of civil Procedure against the order refusing to set aside abatement under Order 22 rule 9 CPC (See AIR 1971 Mysore 78 - D. Ningangoudav B. Fakeerappa ). By not opposing the application and permitting it to be readily granted, the appellants cannot now urge that the application had been wrongly granted. If such a contention is upheld, the right of defendant No. 1 to prefer an appeal against such an order will be defeated. ( 12 ) RELIANCE placed on the judgment of the Punjab High Court in Om Sarup v gut Naraln (AIR 1965 Punjab 367) is also mis-placed. As I have observed earlier, this was not a case where an ex parte order had been passed granting a timebarred application subject to just exceptions, without giving a formal notice of the application to the opposite party. In the instant case, notices were issued to the proposed legal representatives, but they chose not to appear. In their absence, and since the applications were not opposed, they were granted by the learned civil Judge. The principle therefore laid "down in that judgment do not apply to the facts of the instant case. I, therefore, hold that the learned civil judge committed no illegality in allowing the application filed by defendant No. 1' for bringing on record the legal representatives of defendant No. 2. This was done after notice to the concerned parties. The principle therefore laid "down in that judgment do not apply to the facts of the instant case. I, therefore, hold that the learned civil judge committed no illegality in allowing the application filed by defendant No. 1' for bringing on record the legal representatives of defendant No. 2. This was done after notice to the concerned parties. If they chose not to appear and the applications were granted as they were unopposed, the appellants cannot now complain against the order granting substitution. The mere fact that there was no prayer for setting aside abatement in the application for substitution was not fatal because the application disclosed reasons why it was being filed late. The applicants mentioned that they had come to know about the death of defendant No. 2 only 30 days back. That reason may or may not be correct, but in the absence of any opposition, the Court was perfectly within its discretion to grant the application, which amounted to condoning the delay and setting aside the abatement. If the application was opposed and the Court refused to set aside the abatement and order substitution, the aggrieved party had a right to appeal against such an order. This right will be defeated if the appellants are permitted to raise this question in appeal when they had failed to oppose the application of which notice was given to them. ( 13 ) SINCE this was the only question urged before me and the appellants did not challenge the other findings recorded by the learned Civil Judge, this appeal fails and is dismissed. There will be no order as to costs. Appeal dismissed. --- *** --- .