Judgment 1. Heard Mr. Debi Prasad, learned Sr. counsel for the petitioner and Mrs. Jaya Roy, learned counsel for the opposite parties. 2. This revision application is directed against the order dated 20.6.98 passed by the First Additional District Judge, Jamshedpur in Title Appeal No. 32/91 whereby he has recalled the order dated 11.6.97 and held that the appeal stood abated for non-substitution of legal representatives of respondent no.3. 3. The plaintiff-petitioner filed the Title Suit No. 173/88 against the opposite parties and one Durai Birua (now deceased) for declaration of title over Schedule A and Schedule B property and for recovery of possession of Schedule B property. The defendants-opposite parties including Durai Birua (deceased father of opposite party) Nos.3 and 4 and grand father of opposite party no.5 did not contest the suit rather he entered into a cornpromise with the petitioner with respect to Schedule A property and the whole of Schedule B property. The trial court decreed the suit in part but dismissed the suit with respect to Schedule A property. The plaintiff-petitioner, thereafter, preferred Title Appeal No. 32/91 against the aforesaid judgment and decree. Since defendant Durai Birua (since deceased) had already compromised the suit, he was made proforma respondent. During the pendency of the appeal Durai Birua died and accordingly the appellant filed a petition on 9.5.97 for substituting the legal representatives (opposite party nos. 3 to 5 in place of deceased proforma respondent). The learned appellate court vide order dated 11.8.97, allowed the substitution petition and ordered for issuance of a notice of appeal on the substituted respondents. On receipt of notice, opposite party no.3 appeared and filed a petition stating, inter alia, that Durai Birua actually died on 16.1.97 and not on 16.2.97 as stated in the substitution petiton. It is stated that since the substitution petition was not filed within time, the order dated 9.5.97 allowing substitution be recalled and the whole appeal be dismissed as abated. The learned lower appellate court on the said application heard the parties and recalled the order of substitution holding that no petition for substitution of the legal heirs of respondent no.3 was filed within 90 days from the date of death. 4. Mr. The learned lower appellate court on the said application heard the parties and recalled the order of substitution holding that no petition for substitution of the legal heirs of respondent no.3 was filed within 90 days from the date of death. 4. Mr. Debi Prasad, learned Sr.Counsel for the petitioner, assailed the impugned order mainly on the ground that the lower appellate court has failed to examine the record and appreciated the fact that the deceased Durai Birua had not contested the suit rather compromised the same and as such he was impleaded merely as proforma respondent in the appeal. Learned counsel further submitted that in any view of the matter the court below could not have dismissed the suit as abated as a whole inasmuch as at best the appeal would be abated only against the proforma respondent. I find force in the submission of the learned counsel. 5. From perusal of the judgment of the trial court, it transpires that although defendant no.2 filed a written statement but subsequently a petition for compromise was filed by the defendant no.2 stating therein that some plots of Schedule A and B belongs to the plaintiff in raiyati right. At the time of hearing the suit was contested by defendant nos.3 to 5 and not by the defendant no.2 and some witnesses were examined by defendant nos.3 to 5 on their behalf. Accordingly, the suit was decreed in part in respect of Schedule B land and dismissed in respect of Schedule A land. All these facts have not been taken into consideration by the lower appellate court in passing the impugned order. The court of appeal below has also failed to appreciate the fact that the defendants also did not inform the court about the death of Durai Birua, which according to them was 16.1.97, although it was their duty to inform the court in view of the provision under Order 22 Rule 1.0(A) CPC. 6. In the case of Gangadhar and another V/s. Raj Kumar (1983 BBCJ 152 (SC) the Apex Court held that in order to avoid procedural justice souring a march over substantial justice, Rule 10(A) was introduced by CPC Amendment Act of 1976 by virtue of which the rule cast a duty to the client and the counsel to inform the court as soon as he comes to know of the death of the party. In the instant case in approaching the matter from that angle the learned court below failed to take note of the important change in law deliberately made in the Code. 7. In the rejoinder to the application the petitioner has very categorically stated on oath that on enquiry he learnt that Durai Birua died on 16.2.97 and accordingly the application was made within 90 days from 16.2.97. Even assuming that subsequently when it was brought to the notice of the court that Durai Birua actually died on 16.1.97 the court below ought not to have recalled the order of substitution without appreciating the facts stated by the petitioner in the rejoinder. Even assuming that the application for substitution was not filed within 90 days from 16.1.97 the court below could have condoned the delay in filing the substitution petition accepting the case of the appellant that he had no knowledge about the actual date of death of Durai Birua and for that no separate application for condonation of delay was necessary in the facts and circumstances of the case. 8. It is well settled that procedural law is designed to facilitate justice and further its end not a penal enactment for punishment and penalties. In this connection, reference may be made to the decisions of the apex court in the case reported in (1955) 2 SCR 1 , (1983) 1 SCC 14 and AIR 1983 SC 355 . 9. Having regard to the entire facts and circumstances of the case and the discussion made above, I am of the opinion that the court below has exercised its power (sicwith ?) illegality and material irregularities. This civil revision application is, therefore, allowed and the impugned order passed by the court below is set aside.