JUDGMENT : K.C. Jagadeb Roy, J. - This present A.H.O. has been preferred by the plaintiff challenging the decision of the Hon'ble Single Judge dated 17-11-1987 passed in Misc. Case Nos. 52, 53 and 54 of 1987 arising out of First Appeal No. 175/75 rejecting the applications for substitution of the legal representatives of deceased Respondents Nos. 1, 3, and 4 of the First Appeal and setting aside the abatement because of the late filing of the said substitution petitions. The Hon'ble Single Judge rejected the petitions and observed that Respondent No. 1 died sometime in the year 1984, and Respondent No. 3 died sometime in 1983. As far as Respondent No. 4 is concerned, she died, according to the Hon'ble Single Judge, leaving no legal heir and her name was only to be expunged from the records. In the impugned order, the Court had observed that the actual date of death of the aforesaid respondents was not mentioned. The counter that was filed to such application also did not give the actual dates of their death and the ground taken in the petition for substitution which was made by the appellant was that she was an indigent person and she came to Know about the death of the aforesaid respondents in December, 1986 which was strongly controverted in the counter affidavit wherein it was stated that the appellant being a noice of the respondents has knowledge of the death as she attended the funeral ceremonies. 2. The A.H.O. was admitted by the order dated 5-4-1988 subject to the question of maintainability, which was required to be considered first before the appeal was to be taken up on merits. When the matter was subjudice in this Court by a memo, it was brought to the notice of this Court that the name of Respondent No. 4 was deleted in the trial Court on 10-3-1973 and accordingly a prayer was made to the Court that the name of respondent No. 4 be delated at the risk of the appellant. In the said memo it was also indicated that the name of Respondent No 13 is Santa alias Rambha Gandhani wife of Thama Ganda and the counsel for the appellant was permitted by order dated 19-9-1984 to make necessary corrections in the cause title of the A.HO. In the said memo it was also indicated that the name of Respondent No 13 is Santa alias Rambha Gandhani wife of Thama Ganda and the counsel for the appellant was permitted by order dated 19-9-1984 to make necessary corrections in the cause title of the A.HO. The maintainability of the A.H.O. is to be decided first as stated above and by order dated 2-4-1992 this Court directed that the argument on this point must await till the decision of the Full Bench in A.H.O No. 23/86 where maintainability of the A.H.O. was being considered. In the present case, the grounds of objection to the maintainability of the A.H.O. was that the order passed by the Hon'ble Single Judge rejecting the petition for substitution and refusing to set aside the abatement was not "judgment" so as to maintain a Letter's Patent Appeal under Clause 10 and the Letters Patent being a special law, the provisions of appeal against the orders as contained in Rule 43 (1) of the CPC did not apply to an A.H 0. against such an order. The judgment in AH O. No. 23/86 (Barendra alias Birendra Kumar Majhi (dead) and after him Ramani Majhi and Ors. v. Smt. Sitamani Bewa and after her Surendra Kumar Majhi and Ors.) was delivered on 7-8-1992 by the Full Bench In the said case the Full Bench was called upon to decide whether the Letters Patent Appeal was maintainable in view of Section 104(2) of the Code of Civil Procedure. The two decisions of this Court namely Smt. Sashikala Padhi Vs. Smt. Hiren Ghosh and Others, and (Sukuri Dibya and Ors. v. Hemalata Panda and Ors.), reported in (1990) 32 OJD 431 (Civil) since held different views, the question came up for consideration in the Full Bench. It is needless to say that Sashikala's case decided without taking note of the judgment in Sukuri Dibya and Ors. v. Hemalata Panda and Ors., reported in (1930) 32 OJD 431 (Civil). The point for determination before the Full Bench was whether Section 104(2) of the CPC barred an appeal filed under Clause 10 of the Letters Patent. It is needless to say that Sashikala's case decided without taking note of the judgment in Sukuri Dibya and Ors. v. Hemalata Panda and Ors., reported in (1930) 32 OJD 431 (Civil). The point for determination before the Full Bench was whether Section 104(2) of the CPC barred an appeal filed under Clause 10 of the Letters Patent. Section 104(2) of the Code provides that "No appeal shall lie from any order passed in appeal under this section." The Full Bench while deciding this point took notice of the case of Shah Babulal Khimji v. Jayaban D. Kania, reported in AIR 1981 SC 1736 and ultimately came to hold the decision in the earlier case namely Sukuri Dibya v. Hemalata Panda (1990) 32 OJD 431 (Civil) laid down the correct Iaw and overruled the decision in Smt. Sashikala Padhi v. Smt Hiron Ghosh 271 (1991) CLT 197. In that case the question was raised for consideration was if the letters patent appeal was hit by Section 104(2) of the CPC because the order which was challenged was not an appellate order but was an initial order passed for the first time in appeal by the Hon'ble Single Judge. The Full Bench made certain references in paras-7 and 9 of the decision which are relevant for the purposes, In para-7 referring to the judgment of Fazal Ali, J. (speaking for self and Veradarajan, J.) concluded on the submission of Sri Sorabji, who was appearing for the appellant before the Hon'ble Supreme Court in the following orders : "(1) That there is no inconsistency between S. 104 read with Order 43, Rule 1 and the appeals under the letters patent and there is nothing to show that the letters patent in any way excludes or overrides the application of Section 104 read with Order 43, Rule 1 or to show that these provisions would not apply to internal appeals within the High Court. (2) That even if it be assumed that Order 43, Rule 1 does . not apply to Letters Patent Appeals, the principles governing these provisions would apply by process of analogy." This was the statement of Hon'ble Fazal Ali, J. in Babulal's case. (2) That even if it be assumed that Order 43, Rule 1 does . not apply to Letters Patent Appeals, the principles governing these provisions would apply by process of analogy." This was the statement of Hon'ble Fazal Ali, J. in Babulal's case. While quoting the view of Sen, J. in the concurring judgment in the said case, the Full Bench of this Court observed thus ; "The above clearly shows that what was really held by the Babulal Bench was that the provisions finding place in the Letters Patent as well as Section 104(2) of the Code co-exist and one would not override the other. This is put beyond any shadow of doubt in the judgment of Sen, J. according to which a litigant enjoys the right of preterring the appeal u/s 104 of the Code even though such orders may not be appellable under Clause 15 of the Letters Patent as a judgment leaving unimpaired the right under the Letters Patent. What was observed by Fazal Ali, J, in para-62 may also be referred with profit here, according to which there is no conflict at all between Section 104 read with Order 43, Rule 1 of the Code, and the Letters Patent-all that Section 104 of the Code does, is to give an additional jurisdiction apart from the Letters Patent, which is in no way inconsistent with the Letters Patent." Sec. 104 speaks of the order from which the appeal lies. Order 43, Rule 1 of the CPC speaks of the order where appeal lies. Clause K of Order 43, Rule 1 of the CPC says that an order under Order 22, Rule 9 refusing to set aside the abatement or dismissal of the suit is appeallable. In such view of the matter taking the Full Bench's case in A.H.O. No. 23/86, the preset A.H.O. is bound to be held to be maintain- able and we also hold that Section 100A of the CPC also does not bar this appeal because here the order which is being appealed against this A.H.O., is "not a further appeal" as the order appealed against is the order initially passed by the Hon'ble Single Judge in the appeal itself. 3. 3. Now coming to the merits of the case as to whether the order of the Hon'ble Single Judge was justified in law in the facts and circumstances of the case, it is necessary to consider the assertions made in the application filed under Order 22,Rule 9 of the CPC in respect of deceased Respondents 1 and 3. The petitioner-appellant had urged that the case which was finding 1975 came up in the hearing list some times in the month of December, 1986. The appellant's Advocate intimated the local lawyer of the appellant at Bargarh to intimate this fact to the appellant as that she may be ready for the argument in appeal. There was delay in communication of this message to the appellant as the appellant who is a married lady by that time was not living in her father's house at Laharpali but was living in her husband's house in village Telmahul within Malchhamunda Police Station. The appellant was contacted at Telmahul which information reached her on the second week of December, 1986 as asserted in her petition under affidavit. When she disclosed about this hearing of the case in her father-in-law's house, she came to know the death of Ukika Bewa. Not being certain about her death, she went to her father's place at Laharpati which is at a distance of 40 K. Ms. to make necessary enquiries where he came to know that not only Ukia Bewa had died but Chinu Basra, the defendant No. 1 who was Respondent No. 1 in the Fir"t Appeal and Basa Bisra who was defendant No. 3 in the suit and Respondent No. 3 in the First Appeal had also died but the dates of their death could not be ascertained from any one. From the locality she only came to know on inquiry that Ukia Gandani, defendant No. 4 and Respondent No. 4 in the First Appeal, Chinu Basra, defendant No. 1 and Respondent No. 1 in the First Appeal had died sometime in the year 1984 and Basa Bisra, defendant No. 3 who is Respondent No. 3 died in the year 1983 and that she came to know the death of all the aforesaid three defendants, namely, defendants 1, 3 and 4 on 28 12-1986 and on return from village Luharpali to village Telmahul on 30-12-1986 her minor son aged about four years fell ill due to excessive cold exposure due to rain etc. She herself suffered pain because of operation on her stomach. Though she sent informations to her local lawyer Sri P. L, Panda, she could not come to Bargarh to give necessary instructions to the lawyer. On 18-1- 1937 she came to Bargarh, intimated the entire facts, got the petitions drafted and swore affidavits on 19-1-1987 which were sent by registered post to her Advocate Mr. Sinha at Cuttack to file the same before this Court which was numbered as Misc. Case No. 53/87. A counter to this petition was filed. The petitioner also mentioned in the said Misc. Case No, 53/87 that he was an indigent person and could not come to Court personally and sent papers by registered post. An application under Order 22, Rule 4 of the CPC which was filed for substitution vide deceased Respondents 1, 3 and 4 in the First Appeal was numbered as Mis. Case No. 52/87 wherein the appellant had mentioned which is Respondent No. 4 who had died leaving no heir be expunged from cause title and substitution be made in respect of Respondent No. 1 as per Schedule 'A' and in respect of Basa Bisra Respondent No. 3 as per Schedule 'B', who were alleged to be the legal representatives of the deceased Respondent Nos. 1 and 3. In the petition filed u/s 5 of the Limitation Act numbered as Misc. Case No. 64/87, the petitioner narrated the reasons for delay as already stated in her petition in Misc. Case No. 53/87. These petitions were filed as already stated being numbered as Misc. Case Nos. 52, 53 and 54 of 1987'and all were dated 19-1-1987. 1 and 3. In the petition filed u/s 5 of the Limitation Act numbered as Misc. Case No. 64/87, the petitioner narrated the reasons for delay as already stated in her petition in Misc. Case No. 53/87. These petitions were filed as already stated being numbered as Misc. Case Nos. 52, 53 and 54 of 1987'and all were dated 19-1-1987. ' A memo was filed in the First Appeal No. 175/75 dated 28-3-1987 wherein the Respondent No. 2 through his advocate stated under affidavit that Respondent No. 1 (Chinu Basra) and Respondent No. 3-Basa Basra had died long since leaving behind their legal representatives Respondent No. 4-Mst. Ukia Gaudani however died leaving no legal heirs. Since the appellant and deceased respondents belong to same village, the knowledge of death is presumed and the legal representatives of these respondents Nos. 1 and 3 having been substituted in time, the appeal abated as a whole. This memo which was filed under affidavit did not show if the Respondent No. 4 died leaving any legal heirs or not and did not mention the dates of death of any of those three deceased respondents and the assertion that the appellant was of the same village as that of the deceased respondents was also not correct because as already stated the deceased Respondents Nos. 1, 3 and 4 were of the same village as that of her father and not in the village of her father-in-law where she was living. The distance between the village of the father and father-in-law is about 40 k. ms, Defendant No. 2. Tunu Basra who is Respondent No. 2 had filed a counter affidavit on 22-6-1987 challenging the petitions for substitution, setting aside abatement and condonation of delay filed by the appellant. This objection that was filed after three months of the filing of the memo supported by an affidavit was filed by him on 29-3-1987. In the affidavit dated 22-6-1987 he discloses for the first time that the appellant was the niece of deceased Respondent No. 1 and deceased Respondent No. 3 and she had attended the funeral ceremony of those two deceased respondents. As such had the knowledge of death of respondents e. g. Respondents 1 and 3 long before which was not stated is his memo under affidavit filed earlier. As such had the knowledge of death of respondents e. g. Respondents 1 and 3 long before which was not stated is his memo under affidavit filed earlier. The contention of Respondent No. 2 was that since those petitions were filed late, they be rejected. According to him, the grounds for setting aside the abatement and condonation of delay had no basis. As already staled the Hon'ble Single Judge of this Court had rejected the petitions for substitution and refused to set aside the abatement and abated the appeal. There is no dispute that Respondent Nos. 1, 3 and 4 were respondented by lawyers who did not inform the Court about the death of those respondents as was required of them u/s 10A of the Code of Civil Procedure. The decision of the apex Court in the case of Gangadhar and Another Vs. Raj Kumar, may be referred to. In the said case as per the facts revealed in the judgment, the sole respondent in second appeal before the High Court died on 19-4-1980, and one R. K. made a petition on 1-7-1981 praying to be impleaded as heir and legal representative of the deceased respondent, he being the adopted son. Besides he was no sole legatee under the last Will and testament of the deceased. Immediately on 15-7-1981, an application was moved by appellants for substitution. It was averred therein that the appellants' case to know about the death of the respondent only when the so-called adopted son of the sole respondent moved an application on July 1, 1981, stating that the respondent has died on July 1, 1981. There alter they made inquiries about the heirs and legal representatives of the deceased respondent and learnt that he died without leaving behind him any heir and his property has to be escheated to the State of Madhya Pradesh, and the appellants made a petition for permission to substitute State of Madhya Pradesh as the successor to the property of the deceased respondent. It was submitted that the appellants did not know about the death of the deceased and were prevented by sufficient cause from moving the application for substitution in time and therefore, delay may be condoned, and the abatement be set aside and the substitution be granted. It was submitted that the appellants did not know about the death of the deceased and were prevented by sufficient cause from moving the application for substitution in time and therefore, delay may be condoned, and the abatement be set aside and the substitution be granted. The High Court held that it was for the appellant to show when he came to know about the death of the deceased respondent and assign reason why they did not come to know about it early and satisfy the Court that they had no means of knowledge and only then, the appellants can get benefit of the provision of Section 5 of the Limitation Act. The Hon'ble Supreme Court held that the High Court was in error in refusing to set aside the abatement and held thus; "......Rule 10-A which has been added in Order, XXII of CPC by the Amending Act of 1975 provides that when a pleader appearing for a party to the suit comes to know of the death of the party, he shall inform the Court about it and the Court thereafter shall issue notice to the other party. In the case of an appeal, the word "suit" has to be read as "appeal". This provision was introduced specifically to mitigate the hardship arising from the fact that the party to an appeal may not come to know about the death of the other party during the pendency of the appeal but when it is awaiting its turn for being heard. This duty cast upon the Advocate appearing for the party who comes to know about the death of the party to intimate to the Court about the death of the party represented by the counsel and for this purpose a deeming fiction is introduced that the contract between dead client and lawyer subsists to the limited extent after the death of the client." In the case of Ram Sumiran and Others Vs. D.D.C. and Others the Court held thus : xx xx xx It is true that no steps were taken by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record for about 5 years even though according to Respondent No. 4 the appellants knew about the death of Respondent No. 5. D.D.C. and Others the Court held thus : xx xx xx It is true that no steps were taken by the appellants for bringing the legal representatives of the deceased respondent No. 5 on record for about 5 years even though according to Respondent No. 4 the appellants knew about the death of Respondent No. 5. But merely because no application was made by the appellants for bringing the legal representatives of the deceased Respondent No. 5 on record, we do not think that in the circumstances of the present case that would be a valid ground for refusing to grant the application of the appellants for setting aside the abatement and bringing the legal representatives of the deceased respondent No. 5 on record because the appellants are admittedly from the rural area and in a country like ours where there is so much poverty, ignorance and illiteracy, it would not be fair to presume that everyone knows that on death of a respondent, the legal representatives have to be brought on record within a certain time. The ends of justice require that the application for bringing the legal representatives of the deceased respondent No. 5 should have been granted." In such view of the matter, a lenient view should have been taken by the Hon'ble Single Judge and the petitions for substitution, setting aside abatement and condonation of delay would have been considered as the suit was for declaration of her right, title and interest over certain properties who was claiming o her possession in evicting defendants Nos. 1 to 3 amongst other prayers. We find that the appellant had given good grounds in not filing the petitions earlier for substitution and had acted expeditiously in filing the petitions for substitution, setting aside the abatement and for condonation of delay acting without any laches after coming to Know of the date of death of Respondent Nos 1, 3 and 4. In such view of the matter, we set aside the order of the Hon'ble Single Judge rejecting the petitions for substitution and refusing to pass order setting aside the abatement and condonation of delay and direct that the substitution as claimed vide Respondent Nos. 1 and 3 be made and notice be issued to the legal representatives of Respondent Nos. 1 and 3 in the matter of First Appeal. 1 and 3 be made and notice be issued to the legal representatives of Respondent Nos. 1 and 3 in the matter of First Appeal. Since the appellant has already prayed for deleting the name of Respondent No. 1 at her own risk,we do not pass any order regarding the said Respondent No. 4 who has already been deleted by order of this Court from the cause title as per order No. 16 dated 2-3-1987 of the Hon'ble Single Judge. The A. H. 0. is accordingly allowed but in the circumstances of 1he case, there shall be no order as to costs. G.B. Pattnaik, J. 4. I agree. Final Result : Allowed