JUDGMENT N.M. Mithal, J. - This is an appeal by one of the defendants purporting to be on a under O. 43, Rule l(k) of the Code of Civil Procedure. 2. The impugned order was passed on the application moved by the defendant for abatement of the suit for non-impleadment of the heirs of one of the deceased defendant. The order also disposes of some applications moved by the plaintiff for substitution and for setting aside j abatement etc. All those applications have been disposed of by a common order. 3. In order to appreciate the controversy it will be proper to have the facts giving background of the controversy. Hie respondent-bank instituted a suit for the recovery of certain amount loaned to the three original defendants on the basis of equitable mortgage executed by them. The aforesaid suit was filed on 26-3-1985. As is usually done in such cases the defendant avoided service and the notice sent by the respondents came back unserved. It is said that one of the defendant Hansraj had died and the notice sent to him by registered post came back with the postal remark dated 29-9-1985 that 'Hansraj has expired. It appears that the Court passed an order dated 29th October, 1985 directing the plaintiff to take steps within seven days. Thereafter I the plaintiff applied for effecting substituted service on the defendants and the same was allowed I by the Court and that the notice was published in the local Newspaper. This service was proved I to be sufficient and ultimately the Court proceeded to pass ex-parte order on 24-12-1985. 4. On coming to know of the ex-parte decree the present appellant, who was defendant No. 1 in the trial Court, got the record inspected through the Counsel and then applied for setting aside ex-parte decree under O. 9, Rule 13 C.P.C. This application was ultimately allowed by order dated 17-9-1986 and the ex-parte decree dated 24-12-1985 was set aside and the suit was restored to its original number. In 1987 several applications were moved by the parties. All the applications were disposed of by the impugned order and the Court rejected the applications moved by the defendant but allowed the applications moved by the plaintiff. According, substitution application stands allowed. It is against this order that the defendant has come up in appeal. 5. In 1987 several applications were moved by the parties. All the applications were disposed of by the impugned order and the Court rejected the applications moved by the defendant but allowed the applications moved by the plaintiff. According, substitution application stands allowed. It is against this order that the defendant has come up in appeal. 5. Order 43, Rule 1(k) provides for an appeal when an order is passed under Rule 9, of O.1 XXII refusing to set aside the abatement or dismissal of a suit. The preliminary question, therefore, arises whether the appeal is maintainable under the order in question. The Order impugned in this appeal is neither an order refusing to set aside the abatement nor one refusing to set aside dimissal of the suit. In fact the Court has allowed the application after condoning the delay and also allowed the abatement of the suit and has allowed the application for substitution. Such an order is not subject to an appeal under Order 43 at all. 6. Sri Daya Shankar, learned Counsel for the appellant, however, submits that the impugned order is one refusing to dismiss the suit on account of abatement and, therefore, the appeal is maintainable. We fear, we cannot agree with the submission of the learned Counsel. Sub-rule reads as under: "an order under Rule 9 of Order XXII refusing to set aside the abatement or dismissal of a suit". In this connection it will be necessary to examine Rule 9 of Order XXII also. Rule 9 is in the following terms: Effect of abatement or dismissal. - (1) Where a suit abates or is dismissed under this Order, no fresh suit shall be brought on the same cause of action. (2) The plaintiff or the person claiming to be the legal representative of a deceased plaintiff or the assignee or the receiver in the case of an insolvent plaintiff may apply for an order to set aside the abatement or dismissal, and if it is proved that he was prevented by any sufficient cause from continuing the suit, the Court shall set aside the abatement or dismissal upon such terms as to costs or otherwise as it thinks fit. (3) The provisions of section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2). Explanation. (3) The provisions of section 5 of the Indian Limitation Act, 1877, shall apply to applications under sub-rule (2). Explanation. - Nothing in this rule shall be construed as barring, in any later suit, defence to be based on the facts which constituted the cause of action in the suit which had abated or had been dismissed under this order." 7. A careful examination of Rule 9(2) will show that the only right given for applying for setting aside the order of abatement or dismissal of a suit vests in the plaintiff or his assignee or the receiver. The defendant can exercise no right in this regard. Clearly, therefore, any application moved by the defendant praying for abatement of the suit or its dismissal cannot give rise to an appeal. In fact no such application is contemplated under Order XXII at all. In fact the abatement is an automatic process and once there is failure on the part of the plaintiff to obtain substitution after the death of a party to the suit it will result in automatic abatement. Thus the plaintiff alone has a right to apply to the Court for setting aside abatement or dismissal of the suit on that ground. In this view of the matter therefore, we are of the opinion that if the defendant had moved an application for dismissing the suit on the ground of abatement for plaintiffs failure to substitute the legal representative, the dismissal of such an application cannot give rise to an appeal under Order 43, Rule 1(k). Accordingly, we find that this appeal is not legally competent and cannot be sustained. 8. On merits also we do not find any infirmity in the order of the Court below. Copy of the application moved by the defendant under Order 9, Rule XXII for setting asider ex-parte decree itself shows that the heirs of the deceased had already been impleaded by him in that proceeding. Once impleadment has taken place it will enure for the purposes of the suit also. Mere omission to seek substitution in the suit should not necessarily result in the suit being abated. In any case toe rule in this sense is technical and in case substantial justice between the parties has been done no prejudice is likely to be caused to the defendant particularly to the appellant. Mere omission to seek substitution in the suit should not necessarily result in the suit being abated. In any case toe rule in this sense is technical and in case substantial justice between the parties has been done no prejudice is likely to be caused to the defendant particularly to the appellant. We find no reason why the order of the trial Court should not be upheld. 9. On a careful consideration of the submissions made before us we find that the appeal against the impugned order is not legally maintainable and is, therefore, liable to be dismissed. 10. Order accordingly.