Judgment S. N. Jha, J. 1. This application is directed against an order by which the prayer made on behalf of the petitioners for their substitution in place of one Umraon Pandey, Plaintiff No.3 who died on 9-4-1986 during pendency of the suit, has been rejected, 2. It would appear from the application for substitution, a copy whereof has been made as Annexure-1 to the revision application, that the petitioners made the aforesaid prayer for their substitution on the basis of the registered will dated 3-7-1976 said to have been executed by the aforesaid Umraon pandey in their favour in respect of his properties which are also subjectmatter of the suit. It would appear from the impugned order that the aforesaid prayer has been rejected mainly on the ground of delay. 3. The question of delay and/or setting aside abatement of a suit arises only in a case where the question of substitution is covered by the provision of Rules 3 and 4 of Order XXII of the Code of Civil Procedure and not in a case where Rule 10 of Order XXII applies. Rule 10 provides, Inter alia, that in cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved. It is true that in the instant case the will has been executed prior to the filing of the suit i. e. in the year.1976 but on account of the death of the testator taking place on 9-4-1986, the interest in the property in question must be deemed to have been devolved on the legatees during the pendency of the suit. It is well established that there is no limitation for making an application under Order XXII, Rule 10 of the Code. The order of the court below, accordingly, has to be set aside on this ground alone. 4. Mr. Devendra Kumar Sinha appearing on behalf of the State, however, submitted that the will in question has not yet been pro Dated and therefore, the petitioners herein cannot be said to be derived any interest under the aforesaid will. In this connection he has referred to the provisions of Sec.213 of the Indian Succession Act, 1925. 4. Mr. Devendra Kumar Sinha appearing on behalf of the State, however, submitted that the will in question has not yet been pro Dated and therefore, the petitioners herein cannot be said to be derived any interest under the aforesaid will. In this connection he has referred to the provisions of Sec.213 of the Indian Succession Act, 1925. Sub-section (1) thereof reads as follows :- "no right as executor or legatee can be established in any Court of justice, unless a court of competent jurisdiction in (India) has granted probate of the will under which the right is claimed, or has granted latters of administration with the will or with a copy of an authenticated copy of the will annexed. " Learned counsel for the State may be right, so far as the question of establishment of the right of a legates under the will is concerned. However, the question of substitution under the provisions of Order XXII, Rule 10 of the Code stands, on different footing. It is well established that the substitution of a person in place of the deceased party per se does not create any right and does not decide the heirship. It enables the person concerned to prosecute/contest the suit. In that view of the matter, in my opinion, the provisions of Sec.213 of the Act will not stand in the way of the petitioners for the purpose of being substituted in place of the deceased plaintiff No.3. The prayer for substitution of the petitioners, accordingly, has to be allowed. It is, however, made clear that, in view of the provisions of Sec.213 of the aforesaid Act, that so far as the establishment of right, title and interest in the property claimed by the petitioners herein under the aforesaid will is concerned, that will be subject to the grant of probate by a competent court. This order will only enable them to contest or prosecute the suit in question. 5 Subject to the aforementioned observation, this application is allowed. The impugned order is set aside. There is no order as to costs.