ORDER 1. This appeal is directed against the order dated 06/08/1997 passed by IInd Additional District Judge, Bilaspur. In Civil Appeal No. 23-A/90 whereby application filed by the' applicants for bringing legal heirs of respondent No.3 on record under Order XXII rule 4 read with Rule 9 of the Code of Civil Procedure (for short, "the Code"), has been dismissed. 2. Smt. Purnimabai wife of appellant No.1 filed a civil suit alleging that she purchased the suit property by a registered sale deed on 08-01-1976 from Smt. Puronibai and took possession of it. She further pleaded that San tram respondent No.1 asked for shelter in the house for four months but later he did not vacate the same despite notice and repeated request, therefore, the suit for declaration; -mesne profit and possession was filed against Smt. Puronibai and Santram. opposed the suit and pleaded that the suit :property was 'purchased by Sukhru Devi Prasad and Mohan who were in joint possession of the 'same. Puronibai and her husband Devi Prasad adopted San tram and he alone is in exclusive possession of the suit property. 3. Learned trial Court vide judgment and decree dated 6-7-1979 held that the suit house has been constructed by Santram who is adopted son of Puronibai and Devi Prasad. The said judgment and decree was challenged in appeal and the first Appellate Court set aside the judgment and decree of the trial Court and remanded the case back to the trial Court vide its order dated 02-11-1985. As a result of the appellate judgment plaintiff amended the plaint and imp-leaded Ghasiram and Mehtar as defendants. Thereafter, Ghasiram and Mehtar filed their written statement. They admitted that Santram alone is in possession and owner of the suit property. The trial Court recorded the evidence and again decided the case vide judgment and decree dated 31-07-1990. Learned trial Court again held that the suit house has been reconstructed by Santram who is the adopted son of Puronibai and Devi Prasad. Aggrieved by the said judgment and decree the legal representatives of Rmimabai preferred an appeal. During pendency of the appeal respondent Mehtar died, therefore, appellants filed an application on 12-7-96 under Order XXII Rules 4 & 9 and Section 151 of the Code for bringing the legal representatives of Mehtar on Record. Aggrieved by the said judgment and decree the legal representatives of Rmimabai preferred an appeal. During pendency of the appeal respondent Mehtar died, therefore, appellants filed an application on 12-7-96 under Order XXII Rules 4 & 9 and Section 151 of the Code for bringing the legal representatives of Mehtar on Record. On the other hand, respondents No.1 & 2 opposed the application and pleaded that the appellants had knowledge since long back about the death of Mehtar, but knowing the fact well they did not bring the legal representatives on record within prescribed period, therefore, the appeal has been abated, hence it be dismissed. 4. The lower Appellate Court vide impugned order held that the appellants failed to establish sufficient cause for condo-nation of delay in bringing the legal representatives of Mehtar on record, therefore, the whole suit abated and accordingly vide impugned order dismissed the application and also dismissed the appeal. 5. Counsel for both the parties are heard and record of Court below perused. 6. Purnimabai pleaded that she purchased the suit property from Puronibai by a registered sale deed and pleaded that to provide shelter she gave the house to Santram temporarily who despite several requests did not vacate the suit house Purnimabai filed a suit for possession against Santram and Puronibai. The trial Court decided the case and held that suit house has been reconstructed by Santram who is the adopted son of Puronibai and Devi Prasad. Ghasiram and Mehtar have not challenged the findings of lower Court by filing appeal or by way of cross objection and were satisfied with the findings of the trial Court. Suit was not filed for declaration of title. Suit was filed only for possession on specific averment. 7. Order XXII Rule 4 of the C.P.C. reads as below: "4. Procedure in case of death of one of several defendants or of sole defendant-where one of two or more defendants dies and the right to sue does not survive against the surviving defendant or defendants alone, or a sole defendant or sole surviving defendant dies and the right to sue survives, the Court, on an application made in that behalf, shall cause the legal representative of the deceased defendant to be made a party." 8. In the instant suit, one of the defendants Mehtar died. In the instant suit, one of the defendants Mehtar died. Santram was found to be in possession of the suit property by the trial Court and also originally, plaintiff/appellants had brought the suit for possession against Santram and Puronibai. Mehtar and Gharsiram in their written statement pleaded that the suit house is in possession of Santram. In these circumstances, Mehtar was only a proforma party and therefore absence of his representatives on record will not abate the suit as a whole. Appellants in detail described reason for filing belated application and also made a prayer to condone the delay. Learned Court below impressed with the fact that more than four years have been taken by the appellants to bring the legal representatives on record, dismissed the application. 9. Admittedly, the proposed legal representatives have not been served with any notice by the Court below to contest the application and it is manifest that the absence of legal representatives of Mehtar will not abate the suit as a whole. The right to sue remains survived against San tram and Ghasiramo 10. In the result, the impugned order is set aside and the case is remanded back to First Appellate Court with a direction that after affording opportunity to the proposed legal representatives, the application filed by the appellants under Order XXII Rules 4 & 9 read with Section 151 of the Code, should be decided. 11. Both the parties are directed to appear before the First Appellate Court on 17-08-2005. Appeal Allowed.