JUDGMENT Appellants aggrieved by order dated 20.2.1998 has filed present appeal. By the impugned order, appeal filed by Pooranlal against Phool Singh was held to be abated and appellants were not permitted to be substituted in place of Pooranlal. Apart from this, another application filed by appellants under Order 22 rule 4, Code of Civil Procedure for substitution of legal heirs of Phool Singh was also rejected by the lower appellate Court. The facts of the case are as under Pooranlal suffered a decree for eviction in Regular Civil Suit No. 121-A of 1994 passed by VII Civil Judge, Class II, Bhopal on 28.4.1995. During the pendency of the appeal Pooranlal died on 4.6.1996. An application under Order 22 rule 3, CPC was filed on 6.9.1996 by which appellants sought permission of the Court for substitution in place of Pooranlal. The aforesaid application was barred by four days. On 2.2.1998 an application under section 5 of Limitation Act was filed for condo-nation of delay in filing the application under Order 22 rule 3 CPC. During the pendency of the aforesaid proceedings plaintiff respondent Phool Singh also died on 11.8.1997. Counsel appearing for respondent informed on 25.9.1997 that Phool Singh has died. Appellants filed an application under Order 22 rule 4 CPC on 9.121997 which was also barred by 129 days. Respondents contested the aforesaid application on various grounds. The lower appellate Court by impugned order rejected all the applications consequently appeal was held to be abated and confined to record room. Learned counsel for appellants submits that there is sufficient cause for not filing the application within 90 days under Order 22 rule 3 CPC. Subsequently application under section 5 of Limitation Act was filed on 2.2.1998 and the Court ought to have taken a liberal view in the case. The provisions are procedural in nature and the litigant cannot be penalized on the basis of aforesaid procedure. The lower appellate Court committed error and application ought to have been allowed by condoning four days delay in filing the application. Learned counsel for the respondents opposing the contention aforesaid, contended that application under Order 22 rule 3 CPC ought to have been filed along-with application under section 5 of Limitation Act. The lower appellate Court committed error and application ought to have been allowed by condoning four days delay in filing the application. Learned counsel for the respondents opposing the contention aforesaid, contended that application under Order 22 rule 3 CPC ought to have been filed along-with application under section 5 of Limitation Act. He placed reliance on a judgment of this Court in Pooran Singh v. Indra Rajput [ 1997 (1) MPLJ 280 ] and contended that application under Order 22 rule 3 CPC without application under section 5 of Limitation Act was not an application in the eye of law and the application ought to have been dismissed. Considering the aforesaid contention, it is not disputed that the appellant belongs to backward class and they have filed the application beyond 90 days but on 94th day after the death of Pooranlal. In the application under section 5 of Limitation Act, it is stated that they belong to Dhobi caste and are ignorant of procedure of the Court, and the application could not be filed within time. Application under section 5 of Limitation Act may be treated as an application under Order 22 rule 9 CPC for setting aside the abatement caused because of not filing the application within the period of 90 days. Looking to the contents in application dated 2.2.1998 it is treated as an application under Order 22 rule 9 CPC. The Apex Court in Sital Prasad Saxena v. Union of India ( AIR 1985 SC 1 ) has considered the law and held: "Approach to the applications seeking condo-nation of delay in moving the application for substitution of parties who died during the pendency of civil appeal in the High Court has to be as observed in AIR 1983 SC 355 and (1982) 1 SCC 476 . In the present case the High' Court unfortunately committed an error in rejecting the application for condoning the delay. It is the High Court which had to satisfy itself that the petitioner made out sufficient cause which prevented it from moving the application for substitution in time and not the trial Court. The High Court may call for report of the trial Court but cannot adopt approach of a Court exercising revisional jurisdiction. It must examine the material collected by the trial Court and come to its own conclusion. The High Court may call for report of the trial Court but cannot adopt approach of a Court exercising revisional jurisdiction. It must examine the material collected by the trial Court and come to its own conclusion. The second error was that once an appeal is pending in the High Court, the heirs are not expected to keep a constant watch on the continued existence of parties to the appeal before the High Court which has a seat far away from where parties in rural areas may be residing. In the instant case it must be held that both the trial Court as well as the High Court were in error in not condoning the delay in seeking substitution of heirs and legal representatives of the deceased/appellant in time. Cause for delay as urged appears to be sufficient which prevented them from moving the petition for substitution." In view of the aforesaid settled position by the Apex Court, a lenient view has to be taken while dealing with the application under Order 22 rule 3 CPC. There can be no hesitation in condoning the delay in filing the application for substitution when it is only four days' delay. The ratio of the case of Pooran Singh v. Indra Rajput (supra) is not applicable in this case because that relates to the provisions of Rule 3A of Order 41 of the Code of Civil Procedure. Under rule 3A filing of application under section 5 of Limitation Act along-with the appeal is mandatory. The aforesaid ratio cannot be made applicable when the Court is dealing application under Order 22 Rule 3 CPC. In view of the aforesaid, application filed by the appellants under Order 22 rule 9 CPC (though filed under section 5 of Limitation Act) is allowed. The abatement caused in the appeal because of the death of Pooranlal is set aside. Appellants are permitted to be substituted in place of pooranlal. In this regard, appeal filed by the appellants is allowed and that part of order passed by the lower appellate Court is set aside. The abatement caused in the appeal because of the death of Pooranlal is set aside. Appellants are permitted to be substituted in place of pooranlal. In this regard, appeal filed by the appellants is allowed and that part of order passed by the lower appellate Court is set aside. So far as the application filed by the appellants in respect of death of Phool Singh is concerned, it was barred by time, as it was filed beyond 90 days and the appeal was held to be abated because of the provisions of sub-rule (3) of rule 4 of Order 22 CPC, as abatement is automatic. In the circumstances, the Court below has rightly held that the application was filed beyond the period of limitation and the appeal against Phool Singh abated. The order passed under sub-rule (3) of rule 4 of Order 22 CPC is not appeal-able under Order 43 rule l (k) CPC. The appellants may file an application for setting aside abatement caused in the case. The aforesaid order of the lower appellate Court is just and proper and accordingly appeal in this regard filed by the appellants is dismissed. However, appellants are allowed liberty to approach the Court below by filing application under Order 22 rule 9 CPC along-with an application under section 5 of Limitation Act to set aside the abatement caused because of the death of Phool Singh and for condo-nation of delay in filing the application for setting aside abatement. In view of the aforesaid, this appeal is partly allowed, in respect of application of Pooranlal and in respect of abatement caused because of death of Phool Singh liberty is allowed. No order as to costs.