Judgment Gurusharan Sharma, J. 1. The plaintiffs-appellants filed Title Suit No. 42 of 1982 in the Court of Subordinate Judge, Earth for partition wherein one Ram Chandra Prasad, son of Nathni Sao, who was defendant No. 2 died on 6.3.1990. The plaintiffs filed a petition under Order XXII, Rule 4 read with Rule 9 of the Code of Civil Procedure and Sec. 5 of the Limitation Act on 26.6.1990 for substitution of the heirs of deceased to hold that the suit abated as a whole and the same was disposed of accordingly. 2. On 13.12.1990 a petition under Sec. 151 of the Code of Civil Procedure was filed on behalf of the plaintiffs to set aside/recall the said order dated 7.12.1990. It was registered as Miscellaneous Case No. 23 of 1990. In the meantime on 29.4.1991 the plaintiffs moved this Court of Civil Procedure against the said order dated 7.12.1990 was registered. This appeal was admitted on 26.2.1993 and lower Court records were called for. 3. The trial Court records recalls that 7.12.1990 continued to pursue the said miscellaneous case till 27-4.1993 when the records of the suit were dispatched to this Court, for the purpose of this present appeal. I think this was not fair on the part of the plaintiffs to take two remedies at a time and if they had opted for a miscellaneous proceeding for recalling the impugned order, either they should have waited till their petition was disposed of by the trial Court or should have preferred this appeal, only after withdrawing the said prayer. 4. It is true that it was the suit for partition but I find that three sons of the deceased defendant No. 2 were already on record as defendants 1, 3 and 4. Only the widow and daughter of the deceased were to be brought on record. Of course there was a delay of 20 days for in bringing the aforesaid two remaining heirs of the deceased defendant No. 2 on record, and for that a prayer under Sec. 5 of the Limitation Act 1963 was also made in the said petition dated 26.6.1990 to condone the dalay. 5. Of course there was a delay of 20 days for in bringing the aforesaid two remaining heirs of the deceased defendant No. 2 on record, and for that a prayer under Sec. 5 of the Limitation Act 1963 was also made in the said petition dated 26.6.1990 to condone the dalay. 5. In my opinion, since some of the heirs of the deceased defendant No. 2 were already on record, there was no question of abatement and the trial Court committed an error in holding the suit to have abated as a whole, by the impugned order dated 7.12.1990. Even if there were two other heirs and legal representatives who were not on record and a petition for impleading them was not made within the period prescribed by the Limitation Act, the suit cannot be said to have abated. In this regard reference may be made to the decision of the Apex Court in Mahabir Prasad V/s. Jage Ram and Ors. -- . I, therefore, find that the trial Court also failed to take note of Rule 10-A of Order XXII, which has brought in an important change and has deliberately been made to cater to situation like the present one. 6. I, therefore, set aside the impugned order and remit the case to the trial Court for passing appropriate order in accordance with law on the plaintiffs petition dated 26.6.1990. Proceedings of Miscellaneous Case No. 23 of 1990 is directed to be dropped. 7. This appeal is, accordingly, allowed with the aforesaid directions, but without costs. 8. Let lower Court records be sent down immediately.