Judgment Jaynandan Singh, J. 1. This review application has been filed for review of the order dated 9.2.1998 passed by this Court in F.A. No. 708 of 1977. By the said order, petition of the appellant for substitution of legal heirs of respondent no. 12 after setting aside abatement was dismissed. While passing the order, this Court found that the reasons for setting aside abatement were not borne out from the records and thus the same was not acceptable. Therefore, this Court refused to set aside the abatement and dismissed the said application for substitution. Since the First Appeal arose out of a decree in a partition suit, this Court held that the whole appeal had abated and therefore, it had become incompetent and was dismissed. 2. While pressing the review application, learned counsel for the petitioner has contended that in fact the said respondent no. 12, who was defendant no. 11 in the suit, had never appeared in the suit nor had filed written statement and had not contested the suit at any point of time. Therefore, the petition for substitution was covered by the provisions of Order XXII Rule 4(4) of the Code of Civil Procedure. In terms of provisions of sub rule (4) of Rule 4 of Order XXII, appellants were not obliged to substitute legal heirs of the said deceased respondent as he had not filed written statement and had failed to appear in the suit to contest the same till the time of passing of preliminary decree. Learned counsel for the petitioners further submitted that although in normal circumstances in a partition suit due to non-substitution of heirs of a deceased defendant, the entire suit abates but in the peculiar facts and circumstances of this case, this court ought to have considered the fact that at best the appeal should have abated only in respect of interest of respondent no. 12, who was defendant no. 11 in the suit. He submits that before holding the entire appeal as incompetent, this Court ought to have examined the facts of the case to find out as to whether the appeal could be saved in respect of other respondents in the light of the fact that admittedly the interest of respondent no. 12 was confined to only Schedule 3 properties in the suit. 3. Learned counsel for the respondents has contested the prayer of the review petitioners. 12 was confined to only Schedule 3 properties in the suit. 3. Learned counsel for the respondents has contested the prayer of the review petitioners. He has submitted that as this was a partition suit, this Court has rightly held that the entire suit stood abated and the entire appeal had become incompetent in absence of substitution of heirs of respondent no. 12. He has further submitted that in his petition for setting aside abatement and for substitution of heirs of respondent no. 12, the appellants have not taken the plea that the respondent no. 12 had not appeared in the suit and had not contested the same and therefore, they were not legally obliged to substitute his heirs in terms of sub-rule (4) of Rule 4 of Order XXII. He has further submitted that it is a settled law that if two views were possible while considering prayer for setting aside abatement and order was passed taking into account one view, this Court may not review the order and recall the same. 4. Learned counsel for the petitioners has accepted that the protection of sub- rule (4) of Rule 4 of Order XXII was not pleaded in the petition nor was referred to by the learned counsel for the appellants at the time of passing of the impugned order. However, he has drawn the attention of this Court to the wordings of Rule 1 of Order XLVII of the Code of Civil Procedure to contend that although the fact that respondent no. 12 had not appeared in the suit and had not contested the same by filing written statement could not be brought to the notice of the Court at the time of filing of application for setting aside abatement and substitution of his heirs, but the same was apparent on the face of the record and thus the appellants were entitled to seek review of the said order in terms of sub-rule (1) of Rule 1 of Order XLVII. He has drawn the attention of this Court to the wordings of sub- rule (1) of Rule (1) of Order XLVII wherein it is provided that if any person who, from the discovery of new and important matter or evidence which, after the exercise of due diligence, was not within his knowledge or could not be produced by him at the time when the decree was passed or order made, or on account of some mistake or error apparent on the face of the record, or for any other sufficient reason, desires to obtain a review of the decree passed or order made against him, may apply for a review of the judgment to the Court which passed the decree or made the order. He submits that from the judgment of the trial court itself it is clear that respondent no. 12 who was defendant no. 11 in the suit had never appeared in the suit and had not contested the same by filing written statement which fact could- not be pointed out by learned counsel for the appellants appearing at the time before the court when the order under review was passed. 5. Learned councel for the respondents submits that provisions of sub-rule (1) of Rule 1 of Order XLVH of the Code of Civil Procedure give liberty to a person to file a petition if inspite of due diligence a new or important matter could not be produced at the time of passing of the order. Since this was in the knowledge of learned counsel for the appellants appearing in the appeal at that point of time that respondent no. 12 had not appeared and contested the suit, it cannot be presumed that inspite of due diligence it could not be brought to the notice of the Court. 6. Considering the rival submissions, this court is of the view that the fact that respondent no. 12 had not appeared in the suit and not contested the same by filing written statement was a fact established from the records. It can be that learned counsel appearing at that time before the. Court could not point out the same to the Court and take the plea that even if his petition for setting aside abatement is not allowed, the petition should be considered as one under Order XXII Rule 4(4) of the Code of Civil Procedure. It can be that learned counsel appearing at that time before the. Court could not point out the same to the Court and take the plea that even if his petition for setting aside abatement is not allowed, the petition should be considered as one under Order XXII Rule 4(4) of the Code of Civil Procedure. For this laches on the part of the learned counsel for the appellants, this Court is of the view that the appellants should not suffer. When the records established that respondent no. 12 had not appeared in the suit and had not contested the same by filing written statement, the appellant should not be penalized for not substituting his heirs in time and they should be held entitled for protection under sub-rule (4) of Rule 4 of Order XXII of the Code of Civil Procedure. The submission of learned counsel for the-respondents that this plea was not taken by the appellants at the time the order under review was passed and therefore they are debarred from taking this plea for review of the said order is also not acceptable in view of the wordings of sub-rule (1) of Rule 1 of Order XLVII where it is said that for any other sufficient reasons a person can file a petition for review of the order passed in the suit or appeal. The fact that respondent no. 12 had not appeared and contested the suit by filing written statement is an established fact from the records, and therefore, that can be held to be sufficient reason for the review petitioners to file a petition for review of the said order passed in the First Appeal. Moreover, it is well acknowledged that in the interest of justice, Courts should be loathe in scuttling a lis on technicalities unless compelled to on account of unavoidable circumstances. 7. Learned counsel for the respondents, in support of his submission that new plea cannot be allowed to be taken in review application, has referred to a judgment of this Court in the case of S.G. Churiwala V/s. National Insurance Co.Ltd., reported in 1995(1) BLJ 58 . 8. The said judgment was rendered in LPA arising out of a writ application wherein it was held that the point not urged before the writ Court could not be allowed to be taken before the appellate court. 8. The said judgment was rendered in LPA arising out of a writ application wherein it was held that the point not urged before the writ Court could not be allowed to be taken before the appellate court. The said judgment admittedly is not applicable in this case as the said matter is related to a writ application. Moreover, for maintainability of the present review application, plea taken therein has to be considered in the background of particular wordings of sub-rule (1) of Rule 1 of Order XLVII. In view of the above discussions, other judgment cited by learned counsel for the respondents in the case of Thungabhadra Industries Ltd. V/s. Govt. of Andhra Pradesh, reported in AIR 1964 S.C.1372 is also not applicable in the case. 9. Contention has also been made by learned counsel for the appellants that before holding the appeal incompetent, this court ought to have considered as to whether interest of respondent no. 12 was separable from the interest of other respondents and it ought to have examined as to whether the interest of justice could be met by holding the appeal to have abated only to the extent of interest of respondent no. 12. In support of this contention, learned counsel for the appellants has referred to one judgment of the Supreme Court in the case of Shahazada Bi V/s. Halimabi (since dead) by her L.Rs., reported in 2004(4) PLJR 47 (SC). As against this, learned counsel for the respondents has referred to a judgment of the Supreme Court in the case of Municipal Council, Mandsaur V/s. Fakirchand, reported in AIR 1997 S.C. 1251 . 10. Although submission of learned counsel for the appellants appears to be correct that before holding entire appeal to have become incompetent, it was appropriate for the Court to have examined as to whether in the interest of justice appeal could be saved in respect of other respondents or not, but in view of the findings of this Court in respect of the first submission, no discussion and finding is required in this aspect of the matter. 11. In the result, this review application is allowed. Order dated 9.2.1988 passed in F.A. No. 708 of 1977 is reviewed and recalled and F.A. No. 708 of 1977 is restored to its original file.