JUDGMENT : Biswanath Rath, J. - This Civil Miscellaneous petition is filed under Article 227 of the Constitution of India assailing the order dated 11.4.2014 passed by the Additional Civil Judge (Senior Division), Puri in C.M.A. No. 09 of 2012 thereby rejecting an application under Order 22, Rule 4 read with under Order 6, Rule 17 of the Civil Procedure Code basically bringing the legal representatives of the deceased defendants in the pending application under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex parte decree. 2. Short facts involved in the case is that on obtaining an ex parte decree, the plaintiff-Opp. party No. 1 filed an application to draw the Final Decree on the basis of the preliminary decree passed in the suit. During pendency of the Final Decree proceeding, the plaintiff-Opp.party No. 1 had brought an application for substitution on 13.3.2013. Having come to know about the death of such parties, the present petitioner filed an application for substitution in the pending proceeding under Order 9, Rule 13 of the Civil Procedure Code for setting aside the ex parte decree. It is alleged that even though the substitution application at the instance of the Opp. party No. 1 was allowed in the Final Decree proceeding but the application for substitution at the instance of the present petitioner in the restoration proceeding under Order 9, Rule 13 of the Civil Procedure Code has been rejected. Being aggrieved by the said order of rejection, the petitioner preferred this Civil Miscellaneous petition. On challenging the said order, Mr. S.K. Dash, learned counsel appearing for the petitioner submitted that there has been mechanical consideration of the application for substitution by the lower Court in as much as the lower Court has failed to appreciate the provisions contained in Order 22, Rule 4(3) and Order 22, Rule 11 of the Civil Procedure Code as well as the provisions contained in Articles 120, 121 and 137 of the Limitation Act. Strongly relying on the provisions noted herein above, Mr. Strongly relying on the provisions noted herein above, Mr. Dash, learned counsel for the petitioner submitted that in view of the provisions contained therein, there was no requirement of attracting the provisions of Order 22, Rule 4(3) of the Civil Procedure Code or Section 5 of the Limitation Act in as much as since the application for substitution was filed in a proceeding under Order 9, Rule 13 of the Civil Procedure Code which is neither a suit nor an appeal. Provision of Order 22, CPC is not attracted and the Court should not have been persuaded by mere nomenclature of the petition. Referring to a decision in the case of Smt. S. Begum & another v. A. Hossain and others reported in A.I.R. 1980 Madhya Pradesh - 12, Sri Dash, learned counsel for the petitioner claimed that the impugned order is contra to the provisions of the Civil Procedure Code and law. Sri Dash, learned counsel further contended that since similar application at the instance of Opp. party No. 1 was allowed by the very same Court in a Final Decree proceeding, the lower Court rejecting the application at the instance of the present petitioner in the proceeding under Order 9, Rule 13 of the Civil Procedure Code, amounts to application of two standards in similar situation. 3. In opposition, Mr. Goutam Mukherjee, learned counsel for the Opp. parties submitted that in view of the specific provision as contained in Order 22, Rule 4(3) of the Civil Procedure Code since the substitution sought for beyond the period of 90 days, the application for substitution in absence of an application for setting aside abatement and condonation of delay perse was not maintainable and in absence of such application, the petition under Order 22, Rule 4 of the Civil Procedure Code was not maintainable and therefore the lower Court did no wrong in rejecting the application under Order 22, Rule 4 of the Civil Procedure Code at the instance of the present petitioner, leaving no scope for this Court to interfere in the said order passed by the lower Court. Mr. Mukherjee, learned counsel for the Opp. parties relying on a decision in the case between M.K. Prasad Vs. P. Arumogam, submitted that in view of the decision of the Hon'ble Apex Court, the impugned order is justified. 4. Mr. Mukherjee, learned counsel for the Opp. parties relying on a decision in the case between M.K. Prasad Vs. P. Arumogam, submitted that in view of the decision of the Hon'ble Apex Court, the impugned order is justified. 4. Under the afore stated facts, submissions and circumstances, the question now emerges for consideration here is; "Whether the provision of Order 22, Rule 4 of the Civil Procedure Code is applicable in respect of substitution in a proceeding under Order 9, Rule 13 of the Civil Procedure Code?" 5. Section 141 of the Civil Procedure Code reads as follows: "141. Miscellaneous proceedings- The procedure provided in this code in regard to suits shall be followed, as far as it can be made applicable in all proceedings in any Court of civil jurisdiction. [Explanation-In this section, the expression "proceedings" includes proceedings under Order IX, but does not include any proceeding under Article 226 of the Constitution.]" Bare reading of the above, makes it clear that the provision in the Civil Procedure Code are not mandatory. 6. Now coming to the provision under Order 22, Rules 1 & 4 of the Civil Procedure Code which reads as follows: "1. No abatement by party's death, if right to sue survives.--The death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives. 4. Procedure in case of death of one of several defendants or of sole defendant.--(1) Where one of the 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 and shall proceed with the suit. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (2) Any person so made a party may make any defence appropriate to his character as legal representative of the deceased defendant. (3) Where within the time limited by law no application is made under sub-rule (1), the suit shall abate as against the deceased defendant. (4)The court whenever it thinks fit, may exempt the plaintiff from the necessity of substituting the legal representatives of any such defendant who has failed to file a written statement or who, having filed it, has failed to appear and contest the suit at the hearing; and judgment may, in such case, be pronounced against the said defendant notwithstanding the death of such defendant and shall have the same force and effect as if it has been pronounced before death took place. (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 there for 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." Similarly Order 22, Rule 11 of the Civil Procedure Code reads as follows: "11. Application of order to appeals.--In the application of this order to appeals, so far as may be, the word "plaintiff" shall be held to include an appellant, the word "defendant" a respondent, and the word "suit" an appeal." 7. Bare reading of Order 22, Rule 1 of the Civil Procedure Code clearly speaks that the death of a plaintiff or defendant shall not cause the suit (high lighting is of this Court) to abate if the right to sue survives. Bare reading of Order 22, Rule 1 of the Civil Procedure Code clearly speaks that the death of a plaintiff or defendant shall not cause the suit (high lighting is of this Court) to abate if the right to sue survives. Similarly reading of Order 22, Rule 4 of t he Civil Procedure Code lays down the procedure in case of death of one of several defendants or of sole defendant and coming to Sub Rule 3, it again speaks unless an application for substitution is made within time, the suit shall abate as against the deceased defendant. Above again speaks in relation to a suit. Now coming to the provisions contained under Order 22, Rule 11, CPC. The provisions of Order 22, CPC in respect of suits, are also applicable in respect of appeal arising out of suit. Under the above legal provision as discussed herein above, there is no doubt that the provision of Order 22, CPC is applicable in respect of a suit or in case of an appeal arising out of suit and can not be extended to any other proceeding. In deciding a case of similar nature, High Court of Patna in a case between Syed Balal Ahsan Vs. Wastana Rubi and Others the Patna High Court has come to hold that question of abatement of a suit does not arise unless the suit itself is pending. Similarly by a number of decisions, High Court of Lahore as well as the Division Bench of High Court of Madras in the case between Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186 and in the case between Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186 came to hold that in terms of provision, Order 22, R.3, CPC applies to suits only and by virtue of Rule 11, CPC its provisions are extended to appeals. Similarly High Court of Madhya Pradesh in an exact case of this nature in between Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186, referring to Section 141, C.P.C., Order 9, Rule 13, CPC, Order 22, CPC as well as Articles - 137 and 120 of the Limitation Act, 1963 in paragraphs-6 to 9 came to hold as follows: "6. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186, referring to Section 141, C.P.C., Order 9, Rule 13, CPC, Order 22, CPC as well as Articles - 137 and 120 of the Limitation Act, 1963 in paragraphs-6 to 9 came to hold as follows: "6. Applicability of the procedure pro-rided in the Code for suits with the aid of S, 141 to a proceeding under Order 9 ex debito justitiae, i.e., to prevent an injustice, cannot be doubted. The trouble arises when penal provisions, which in terms have not been made applicable to such a proceeding, though applicable to a suit, are sought to be invoked with the aid of Section 141 . Whether that would be permissible? Section 141 of the Code itself says that the whole of the procedure in regard to suits may not be applicable to a proceeding in a Court of Civil jurisdiction. Only such procedure shall be followed "as far as it can be made applicable". The question then is whether the penal provisions of abatement contained in Order 22, in case an application for substitution is not filed within 90 days, should govern even an application for restoration filed under Order 9 . The relevant Article of the Limitation Act is Article 120, which reads as under: Art. 120: Under the Civil P. C. 1908, to have the i.e., Rul representatives of a deceased plaintiff or appellant fir of a deceased defendant or respondent, made a party. Ninety days The date of death of the plaintiff appellant, defendant or respondent as the case may be. In a suit when the plaintiff or the defendant dies, an application to bring on record the legal representatives has to be made within 90 days, the limitation for the application is provided in Article 120 of the Limitation Act. The same Article governs the application for substitution when an appellant or a respondent dies in a pending appeal. This Article of the Limitation Act cannot be extended in its operation by analogy or otherwise to an application for substitution when an applicant or non-applicant dies hi a pending proceeding for restoration under Order 9 . We cannot read into the Article "an applicant" for the plaintiff or "a non-applicant" for the defendant. This Article of the Limitation Act cannot be extended in its operation by analogy or otherwise to an application for substitution when an applicant or non-applicant dies hi a pending proceeding for restoration under Order 9 . We cannot read into the Article "an applicant" for the plaintiff or "a non-applicant" for the defendant. Section 141, Civil P.C. may permit the procedure for a suit to be followed in a proceeding initiated under Order 9 but the provisions of the Limitation Act could not be amended by any process of reasoning so as to read "applicant" for "plaintiff" and "non-applicant" for "defendant". And unless that could be done, the application for substitution in such a case would be governed by the residuary Article, there being no special provision. 7. Order 22 contains penal provisions which affect substantive rights of the plaintiff or the appellant, as the case may be, when an application for substitution is not filed within time. The penal provisions have to be construed strictly. Unless they expressly declare the provisions to be applicable to a proceeding other than a suit or appeal, those provisions cannot be applied by analogy to such a proceeding. 8. There are two weighty reasons given by Abdur Rahman, Ag. C.J. in the Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186 for holding that the provisions of Order 22, Rule 3, C.P.C. are not applicable to revisions. (Please see paras 9 to 13 of the Judgment). There is nothing to choose between a revision and a Miscellaneous Judicial case, which is not a suit or appeal, to make any distinction in the applicability of Article 120 of the Limitation Act. If the said Article does not apply to a revision, it does not apply to an application for restoration either. To the same effect are the Full Bench Authorities reported in Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186 and Mohd. Sadat Ali Khan vs. The Administrator, CorporationAIR 1949 Lahore 186 . 9. Naturally a proceeding on the death of a party cannot proceed and those to whom the right to sue survives have to be impleaded. But the limitation to make an application for substitution in a suit for which there is express provision, would not govern a proceeding which is neither a suit nor an appeal. 9. Naturally a proceeding on the death of a party cannot proceed and those to whom the right to sue survives have to be impleaded. But the limitation to make an application for substitution in a suit for which there is express provision, would not govern a proceeding which is neither a suit nor an appeal. That being so, Order 22 would not in terms apply to a proceeding initiated under Order 9 for restoration of a suit dismissed in default." In view of the discussions made herein above on the factual aspects of the case, all the legal provisions referred to and quoted herein above and the position as settled by different Courts, this Court is of the view that since the application for substitution was filed in a proceeding under Order 9, Rule 13 of the Civil Procedure Code, the provision of Order 22 of the code of Civil Procedure would not have any application to the petitioner's case and in view of settled position of law and the clear provision as contained in Order 22 of Civil Procedure Code, the Court should not have gone merely by the nomenclation of the application and instead would have allowed the application. Consequently this Court finds the impugned order is bad in law, thus while interfering in the impugned order, this Court sets aside the impugned order and allow the application for substitution thereby permitting for bringing the legal representatives of the deceased defendants in the proceeding under Order 9, Rule 13, CPC and necessary amendment consequent upon the death of the particular defendants to the case proceeding. Civil Miscellaneous Petition stands allowed. However, there is no order as to cost. Final Result : Allowed