ORAL ORDER Both C.W.J.C. Nos. 14299 and 15440 of 2010 which has been converted from Civil Revision Nos. 383 and 382 of 2008 are taken up together as the facts, parties and issues involved are common and connected. 2. In both the writ applications the plaintiffs are petitioners and defendants are respondents. 3. The plaintiffs brought a suit for declaration of title and confirmation of possession of suit land fully described in Schedule of the plaint and alternatively to put in possession if they are found dispossessed. The plaintiffs-petitioners further prayed for restraining the principal defendants by order of injunction from making any sort of interference in possession of the plaintiffs. 4. C.W.J.C.No.14299 of 2010 converted from Civil Revision No.383 of 2008 is directed against the order dated 22.12.2005 passed by the Sub-Judge VIII, Patna in Title Suit No.100 of 1986 whereby the petition of the plaintiffs dated 23.5.2002 praying therein to set aside the order of abatement and substitute the legal heirs of respondent no.2 in cause title of plaint has been rejected by impugned order. 5. C.W.J.C.NO.15440 of 2010 converted from Civil Revision No.382 of 2008 has been filed against order dated 7.12.2007 passed by Sub Judge VIII, Patna in Title Suit No.100 of 1986 whereby the petition of the plaintiffs-petitioners dated 20.1.2006 praying therein to review the order dated 22.12.2005 passed by Sub Judge VIII, Patna has been rejected. 6. The other defendants save and except defendant no.2 appeared and filed written statement. In the instant case question relates to non-substitution of defendant no.2 and consequently abatement arising on account of non-substitution within time schedule. 7. It appears that defendant no.1 filed a petition on 13.6.2000 stating that the suit has abated against defendant no.2 who died on 3.5.1999 as well as against defendant no.3. The plaintiffs-petitioners filed a rejoinder stating that they had no knowledge of death of defendant nos.2 and 3 and as such they could not file substitution petition earlier. The trial court accepted the petition of defendant no.1 and observed that the suit stands abated against defendant nos.2 and 3. The plaintiffs-petitioners on 23.5.2002 filed a petition for modification of the order dated 21.4.2001. The plaintiffs-petitioners submitted before the trial court that they came to learn for the first time about the death of defendant no.2 on 3.5.1999 which fact was not informed by the latter prior to his petition dated 13.6.2000. The plaintiffs-petitioners on 23.5.2002 filed a petition for modification of the order dated 21.4.2001. The plaintiffs-petitioners submitted before the trial court that they came to learn for the first time about the death of defendant no.2 on 3.5.1999 which fact was not informed by the latter prior to his petition dated 13.6.2000. So far as defendant no.3 is concerned, the order of abatement is an error of record as his name was already struck off. After hearing the parties, the trial court vide order dated 20.2.2002 allowed the plaintiffs-petitioners to take suitable steps under the law for setting aside abatement dated 21.4.2001. In terms of the liberty granted by order dated 20.2.2002, the plaintiffs-petitioners filed a petition for substitution along with a prayer to set aside the abatement. The trial court rejected the petition on the ground that the suit stood already abated by order dated 21.4.2001. 8. I have heard counsel for the parties and perused the materials on record. 9. The order of the trial court is not sustainable in law for the following reasons; technically the suit would abate against defendant who has died, if no substitution or petition for setting aside the abatement is filed under Order 22 Rule 4 and 9 CPC within the period of limitation under section 5 of the Limitation Act. However, if a plaintiff is ignorant of the death or he had no knowledge of the death, he cannot possibly make an application for substitution and setting aside the abatement. However, if a plaintiff is ignorant of the death or he had no knowledge of the death, he cannot possibly make an application for substitution and setting aside the abatement. In the context sub-rule 5(a) and (b) of Rule 4 of Order 22 CPC would be relevant which is quoted hereinbelow for easy reference:- “5 Where- (a) the plaintiff was ignorant of the death of a defendant, and could not, for that reason, make an application for the substitution of the legal representative of the defendant under this rule within the period specified in the Limitation Act, 1963 (36 of 1963), and the suit has, in consequence, abated, and (b) the plaintiff applies after the expiry of the period specified therefore in the Limitation act, 1963 (36 of 1963), for setting aside the abatement and also for the admission of that application under section 5 of that Act on the ground that he had, by reason of such ignorance, sufficient cause for not making the application within the period specified in the said Act, the Court shall, in considering the application under the said section 5, have due regard to the fact of such ignorance, if proved”. 10. It further appears that on coming to know about the death of defendant no.2, the plaintiffs-petitioners filed a petition for a direction to defendant no.1 to furnish the details of heirs of defendant no.2. Thereupon, the plaintiffs- petitioners filed a petition for substitution and setting aside abatement on 23.5.2002. The trial court erred in not allowing the abatement as the plaintiffs-petitioners had explanation for not filing a petition of substitution earlier. It also further follows that even where a court has observed on petition of a party that the suit has abated on account of non-filing of the substitution petition along with a prayer to set aside the abatement, it has inherent power to allow such substitution and set aside the abatement, if the parties satisfy the court that it was ignorant about the death of concerned defendant or had no knowledge about the same. 11. It would be further relevant to notice that defendant no.2 neither appeared in the suit which is pending since 1986 nor filed any written statement. The evidence of defendant no.2 thus closed long back. 11. It would be further relevant to notice that defendant no.2 neither appeared in the suit which is pending since 1986 nor filed any written statement. The evidence of defendant no.2 thus closed long back. The heirs of defendant no.2 would not be entitled to file any written statement as they would have no better right then their predecessor. In such circumstances, even the abatement would also be of not much consequence. 12. Thus, the impugned order dated 22.12.2005 rejecting the petition of the petitioner for substitution and setting aside the abatement is hereby set aside. Consequently the order dated 17.7.2007 rejecting the review petition too is set aside. 13. In the result, these writ applications are allowed.