JUDGMENT : Brieflystated relevant facts are that one Gokulchand preferred regular Civil Appeal No. 7-A/97 against the respondents in the Courtof District Judge Guna . During pendency of the appeal, Gokulchand died. An application underOrder 22 Rule 3, CPC was submitted by the L.Rs .,which was dismissed on 24-8-1999 on account of being barred by limitation,since the application was not accompanied by a prayer for condo nation of delayunder Section 5 of Limitation Act. 2.Thereafter, another application under Order 22 Rules 9 and 11 read with Section151 of CPC was submitted for setting aside abatement, which has been dismissedby the Court below on the ground that once the application under Order 22 Rule3 of CPC is dismissed, another application before the same Court is notmaintainable. 3. Shri S.K. Shrivastava , learned Counsel for the appellants submitted that althoughprovisions of Order 22 Rule 3 and Rule 9 of CPC are interlinked but scope ofthe provisions is altogether different. Despite dismissal of the applicationunder Order 22 Rule 3 of CPC, an application under Order 22 Rule 9, CPC forsetting aside abatement ought to have been considered on its own merits. 4. Shri Ajay Bhargava , learned Counsel for the respondents made efforts to supportthe impugned order. 5.After hearing the rival submissions, this Court is of the considered view thatthe appeal deserves to be allowed for the simple reason that whenever the L.Rs . fail to take appropriate steps to bring themselves onrecord in place of the deceased plaintiff/appellant within a period of 90 days,the suit/appeal abates. Abatement may be set aside on an application underOrder 22 Rule 9, CPC provided the same is submittedwithin 60 days from the date of abatement. Learned Lower Appellate Judge hasthus acted illegally in holding that once the application under Order 22 Rule 3of CPC is dismissed, another application under Order 22 Rule 9 of CPC will notbe entertain able. This is clearly a misconception of law. Learned Lower AppellateCourt ought to have decided the application on merits. 6.At this stage, Shri Ajay Bhargava ,learned Counsel contended that the application under Order 22 Rule 9 of CPC wasnot within limitation and the same has rightly been dismissed. 7.However, it may be seen that the learned Lower Appellate Court has notdismissed the application on the ground of limitation, but has dismissed it asnot maintainable. 6.At this stage, Shri Ajay Bhargava ,learned Counsel contended that the application under Order 22 Rule 9 of CPC wasnot within limitation and the same has rightly been dismissed. 7.However, it may be seen that the learned Lower Appellate Court has notdismissed the application on the ground of limitation, but has dismissed it asnot maintainable. In any case, the L.Rs ., Le., the present appellants could have moved anapplication for seeking condo nation of delay in the matter of setting asidethe abatement. 8.This being so, the appeal is partly allowed. Matter is remitted back to thelearned Lower Appellate Court to decide the application under Order 22 Rule 9,CPC afresh in accordance with law after granting opportunity to seek condo nationof delay. Needless to say, the respondents shall have also right to oppose theapplication for condo nation by submitting reply and documents, if advised.Impugned order is accordingly set aside. Parties to appearbefore the learned Lower Appellate Court on 22-2-2010 . Record of the Court below be sentback immediately. Noorder as to costs.