JUDGMENT 1. - Facts which are necessary for deciding this Miscellaneous Appeal filed against the order dated 29.5.92 passed by the Additional District Judge No. 2, Jaipur City, Jaipur, in Civil Suit No. 3/89, are that the appellant, Bhagwan Das, filed an application in the trial court on 5.9.90 under Order 22 Rule 4 C.P.C. along with an application under section 5 of the Limitation Act, 1963 for bringing him on record as the legal representative of Parumal son of Phagun Das who had instituted suit No. 3/89 against the respondent Kanta Devi for specific performance of the contract. This application was contested by the respondent who stated that the suit filed by Parumal was itself not maintainable because, no person named Parumal existed and in fact, some other person had manipulated documents for depriving the respondent of her property. When these persons did not succeed, they manipulated a declaration that Parumal has died and now Bhagwan Das has claimed himself to be the sole heir. Respondent pleaded that application had been filed after 231 days and therefore, it was not maintainable. She further pleaded that Parumal is said to have died on 17.1.90 and therefore, the suit abated on 17.4.90. Limitation for setting aside of abatement had also expired on 16.6.90. 2. After hearing both the parties, learned Additional District Judge observed that no affidavit has been filed in support of the application filed under Order 22 Rule 4 C.P.C. showing that applicant Bhagwan Das is the sole heir of Parumal no will of Parumal was been produced nor any succession certificate has been produced. No application had been filed for setting aside the abatement of suit even though the suit stood abated automatically on 17.4.90. The trial Court also observed that period of limitation prescribed for making application for setting aside of abatement had also expired. On the basis, the trial Court dismissed the application of Bhagwan Das. 3. Shri Arun Bhandari, learned counsel for the appellant, has strenuously argued that the learned trial Court has committed serious illegality in rejecting the application of the appellant as maintainable. On the basis, the trial Court dismissed the application of Bhagwan Das. 3. Shri Arun Bhandari, learned counsel for the appellant, has strenuously argued that the learned trial Court has committed serious illegality in rejecting the application of the appellant as maintainable. Shri Bhandari argued that once an application has been filed under Order 22 Rule 4 coupled with an application under section 5 of the Limitation Act, prayer for setting aside of abatement must be treated as implicit in it and the trial court ought to have examined application of the applicant on merit. Shri Bhandari submitted that the appellant is an aged person of 58 years and he had no knowledge about the pendency of the litigation between his brother Parumal and the respondent and therefore, the' mere fact that he could not submit application within time could not ha:. denied him right to continue the suit filed by Parumal for specific performance of the contract. Shri Bhandari argued that the trial Court has failed to appreciate the true import of the application filed by the appellant and its refusal to set aside the abatement and bring the appellant on record has resulted in miscarriage of.justice. Shri Bhandari placed reliance on the decisions in Prem Nath v. M/s. Kandoo Mal, AIR 1962 Punjab 446 ; Bachna Ram v. Gram Panchayat Jonda, AIR 1971 Punjab 243 ; Sriram Prasad v. State Bank of Bikaner and others, AIR 1972 All. 456 ; Shakuntala Devi v. Banwari Lal, AIR 1977 All. 551 ; Union of India v. Kundan, AIR 1977 Delhi 38 ; Sanya Rani v. Sudha Rani, AIR 1978 SC 537 ; Shital Prasad v. Union of India, AIR 1985 SC 1 . 4. Shri R.M. Lodha, learned counsel for the respondent, on the other hand, argued that suit filed by Parumal stood abated on 17.4.90 i.e. after three months of his death which took place on 17.1.90. Shri Lodha argued that when the suit stood abated nothing was in existence before the trial court and unless an application for setting aside the abatement was. moved the trial court could not have made an order for bring on record Bhagwan Das who claimed himself to be the sole heir of Parumal. Shri Lodha argued that when the suit stood abated nothing was in existence before the trial court and unless an application for setting aside the abatement was. moved the trial court could not have made an order for bring on record Bhagwan Das who claimed himself to be the sole heir of Parumal. Shri Lodha argued that the provisions contained in Order 22 Rules 3 and 4 are independent and separate from.the provisions continued in Order 22 Rule 9 and unless an application for setting aside abatement was filed under Order 22 Rule 9 showing sufficient cause, no order could be made 1'y the Court for bringing so called representative of Parumal on record. Shri Lodha argued that the trial Court has correctly appreciated the legal position which is supported by a series of judgments by this Court in Durga Lal v. Asarfi Lal, AIR 1973 Raj. 332 ; Vidya Prakash v. Rani Dan, 1987 (2) RLR 153 , and State v. Prem Raj, 1992 (1) WLC 516 . Shri Lodha further argued that the explanation offered by the applicant appellant Bhagwan Das for condonation of delay is no explanation whatsoever, because, he has not come as to how he is the only heir of Parumal and why did he not go to the house of Parnmal at Sanganer when he had himself claimed that he was looking after the properties of Parumal after his death. Shri Lodha submitted that even though a liberal view can be taken by the Court, it is obligation for the applicant to establish the existence of sufficient cause for condonation of delay and in this case, there is no explanation worth the name for condoning the delay of over four months and a half counted from the date of abatement of the suit and over two months and a half counted from the date of expiry of 60 days within which the applicant could make an application for setting aside the abatement. 5. Having given my serious consideration to the rival submissions I am convinced that no interference is called for in the order dated 29.5.92 passed by the learned Additional District Judge No. 2, Jaipur City. 6. 5. Having given my serious consideration to the rival submissions I am convinced that no interference is called for in the order dated 29.5.92 passed by the learned Additional District Judge No. 2, Jaipur City. 6. A look at the contents of the application filed by Bhagwan Das before the trial court and a copy of which has been placed on the record of this Court shows that the application was filed under Order 22 Rule 4 with a prayer that Bhagwan Das be taken on record as legal representative of late Parumal. This application neither contains a reference to Order 22 Rule 9 nor does it contain a prayer for setting aside abatement of the suit. It does not even refer to the factum of abatement. The, application is not supported by affidavit of Bhagwan Das. In his, application filed under section 5 of the Limitation Act on 6.9.90 the applicant prayed for condonation of delay in filing of the application under Order 22 Rule -4. In neither of these applications Bhagwan Das has disclosed as to how he claimed himself to be the sole heir of Parumal. He has not pleaded that Parumal was unmarried. He has not pleaded that Parurnal and he were the only sons of Phagun Das. He has not based his claim on a will executed in his favour by Parunial nor has he produced succession certificate. The only statement made by him is that Parumal is his brother who died on 17.1.90. Parumal lived alone in his house at Mansarovar and that he was to look after the house and its upkeep after the death of Parumal. He discovered a letter of Nihal Chand Sogani, Advocate on 2.9.90 when he visited the house at Mansarovar. Shri Sogani expressed his inability to conduct the case and handed over file to him. It is thus clear that the applicant-appellant had knowledge of the death of his brother on 17.1.90. He had filed application under Order 22 rule 4 through his Advocate and no reason has been given as to why he has not pleaded the factum of abatement and has not made a prayer for setting aside of abatement. It is thus clear that the applicant-appellant had knowledge of the death of his brother on 17.1.90. He had filed application under Order 22 rule 4 through his Advocate and no reason has been given as to why he has not pleaded the factum of abatement and has not made a prayer for setting aside of abatement. Order 22 Rules 3 and 4 lay down the procedure which is required to be followed in case of death of one of the several plaintiffs, when the right to succeeds not survive to the surviving plaintiffs alone or that of the sole plaintiff when the right to sue survives or on the death of one of the several dependents of sole defendant in similar circumstances. An application is required to be made for bringing the legal representatives of the deceased on record. If application is not made for bringing legal representatives on record within the prescribed time, the suit abates qua the deceased plaintiff or against the deceased defendant. Effect of such abatement in the case where there are more than only plaintiffs and defendants need not be considered because, the present one is a case of the death of sole plaintiff. Order 22 Rule 9(1) imposes a statutory bar against the filing of fresh suits. However, Order-22 Rule 9(2) provides for a remedy in case of abatement. If an applicant makes an application under Order 22 Rule 9(2) and satisfies the Court that he could not make an application for bringing legal representatives on record and there exists a sufficient cause, the Court is entitled to set aside the abatement. Provisions of the Limitation Act are applicable to such application and in teens of Article 121 of the Limitation Act, 1963 an application under Order 22 Rule 9(2) can be-filed only within a period of 60 days, It is thus clear that the procedure prescribed in Order 22 Rule 3 and Rule 4 is quite distinct-and separate from the procedure prescribed in Order 22 Rule 9(2).Once the suit abates on account of failure of imp leading the legal representatives of the deceased plaintiff, the only course open to the applicant is to make an application under Order 22 Rule 9(2) within the time prescribed for setting aside the abatement. He can succeed only if he satisfies the Court that he was prevented due to sufficient cause from making an application for continuing the suit. 7. In the case in hand, no application was filed by the applicant-appellant under Order 22 Rule 9(2) nor any prayer was made in the application dated 5.9.90 for setting aside of abatement. Even though, absence of specific mention of Order 22 Rule 9 in the application dated 5.9.90 may not have been fatal, if prayer had been made by the applicant for setting aside of the abatement, but, his local failure to plead that the suit stood abated on 17.9.90 and to make a prayer for setting aside of abatement dis entitles him to claim an order for setting aside of abatement. In Durga Lal v. Asarfi Lal , (supra), this Court clearly negatived the argument that an application presented before the Court for imp leading the legal representatives of the deceased should be treated as an application for setting aside the abatement which had automatically taken effect. This Court held that the judgment of Punjab High Court in Bachna Ram v. Gram Panchayat , (supra) does not reflect the correct position of law. This Court held that if an application does not fulfil the essential requirements of an application for setting aside abatement, it is not open to the Court to set aside the abatement. In Vidya Prakash v. Rani Dan , (supra), this Court followed the decision in Durga Lal's case and reiterated that proceedings for bringing legal representatives on record are distinct and separate from the proceedings to set aside abatement. The Court held that absence of specific prayer for setting aside abatement, application for bringing legal representatives on record cannot be treated as one for setting aside the abatement. Similarly, in State v. Prem Das , this Cant rejected an argument that an application filed for bringing legal representatives of record should be treated as an application for setting aside the abatement. In Janh Nath v. Nirodbaran Ray, AIR 1930 Cal. 422 ; Kundan Mal v. Jwala Prasad, AIR 1963 MP 183 ; S.R. Gaintonde v. J.J. Fonsoco, AIR 1976 Goa Daman Diu 11 . similar view has been expressed by different High Courts. In Janh Nath v. Nirodbaran Ray, AIR 1930 Cal. 422 ; Kundan Mal v. Jwala Prasad, AIR 1963 MP 183 ; S.R. Gaintonde v. J.J. Fonsoco, AIR 1976 Goa Daman Diu 11 . similar view has been expressed by different High Courts. Decision of the Allahabad High Court in Sriram v. State Bank of Bikaner , on which much emphasis has been placed by Shri Bhandari is clearly distinguishable. That it was case in which the High Court recorded a specific conclusion that some of the legal representatives of a deceased were already on record and an application had been filed only for bringing others on record. The Court held that there had been no abatement and therefore, there was no question of setting aside the abatement. A further observation has been made that where an applicant applies for condonation of delay and for bringing on record the legal representatives, a prayer for setting aside abatement is implicit. In Union of India v. Kundan, AIR 1977 Delhi 38 , Division Bench of Delhi High. Court relied on the decision of Bachna Ram v. Gram Panchayat Jonda , (supra) and observed that an administration for substitution may, in substance, be treated as an application to set aside the abatement. The Division Bench however, observed that such a course should not be adopted when the merits of the case are against the applicant. In Shakuntala v. Banwari Lal , application had been filed under Order 22 Rule 4 and Order 22 Rule 9 C.P.C. By placing reliance on some of the earlier decisions a learned Single Judge held that such an application can be treated for setting aside abatement and for bringing on record the heirs and legal representatives of the deceased. It is thus, clear that the judgments of Delhi and Allahabad High Courts are based on the judgments of the Punjab and Haryana High Court in Bachna Ram's case (supra). In neither of these judgments the courts have considered distinction between the provisions of Order 22 Rules 2 and 3 on the one hand and Order 22 Rule 9 on the other hand. In neither of these judgments the courts have considered distinction between the provisions of Order 22 Rules 2 and 3 on the one hand and Order 22 Rule 9 on the other hand. None of these Courts have considered this aspect of the matter that once the suit stands abated by operation of law, a prayer for setting aside abatement is prerequisite for bringing the legal representative on record and unless the Court sets aside the abatement, legal representatives cannot be brought on record. Two judgments of the Supreme Court on which Shri Bhandari has placed' reliance do not relate to the interpretation of Order 22 Rules 3, 4 and 9 and therefore, they are of little help to applicant's case. The three judgments of the Rajasthan High Court clearly bring about the distinction between the different provisions of Order 22 regarding substitution of the parties and setting aside of the abatement. In Durga Lal's case this Court has distinguished the Punjab case and the judgment of Durga Lal has been followed in two subsequent decisions. I find no reason whatsoever, for taking a different view. 8. On the basis of the above discussion, it is held that the application filed by the appellant Bhagwan Das for taking him on record as legal representatives of Parumal was not maintainable, because no application for setting aside of abatement of the suit which took place on 17.4.90 was filed nor any prayer was made in the application dated 5.9.90 for setting aside of the abatement. 9. Consequently, the miscellaneous appeal fails and it is hereby dismissed without any order as to costs.Appeal dismissed. *******