JUDGMENT : Ashis Kumar Chakraborty, J. This application is at the instance of heirs and legal representatives of the sole respondent in the second appeal who died intestate on April 27, 2015. The applicants have prayed for dismissal of the appeal after recording abatement of the appeal on the ground that in spite of the death of the sole respondent, being the plaintiff in the suit for partition, the defendants appellants have not brought her heirs and legal representatives on the records of the appeal. 2. In spite of service of this application on all the defendants appellants it was only the appellant no. 3 who contested this application by filing his affidavit in opposition. 3. Mr. Pradip Kumar Roy, learned counsel appearing for the applicants, contended that a period of 150 days from the date of death of the sole respondent has expired and no application has been filed for substitution of the applicants, in place and stead of their deceased mother by setting aside the abatement of the appeal, after condonation of delay. Thus, he urged that this Court should allow the present application of the applicants by recording abatement of the appeal. 4. Mr. Roy submitted that admittedly in the present case the sole respondent, since deceased filed the partition suit against the defendants appellants and the trial Court passed the preliminary decree declaring that the plaintiff respondent, since deceased has one-fifth (1/5th) share in the suit properties, which was affirmed by the learned first appellate court. It is preliminary decree passed by the learned first appellate court which is the subject-matter of challenge in the second appeal. According to Mr. Roy, admittedly the judgments and decrees passed by both the learned Courts below are common judgments and decrees against the defendants appellants and since no step has been taken by the defendants appellants for setting aside of the abatement of the appeal against the plaintiff respondent, since deceased the entire appeal has abated. Mr. Roy relied on the decisions of the Supreme Court in the cases of State of Punjab Vs. Nathu Ram, reported in AIR 1962 SC 89 , Sri Chand Vs. Jagdish Pershad Kishan Chand, reported in AIR 1966 SC 1427 and Badni (Dead) by LRS. Vs. Siri Chand (Dead) by LRS., reported in (1999) 2 SCC 448 . 5. Mr. Nisith Mukherjee, learned counsel appearing for the defendant appellant no. Nathu Ram, reported in AIR 1962 SC 89 , Sri Chand Vs. Jagdish Pershad Kishan Chand, reported in AIR 1966 SC 1427 and Badni (Dead) by LRS. Vs. Siri Chand (Dead) by LRS., reported in (1999) 2 SCC 448 . 5. Mr. Nisith Mukherjee, learned counsel appearing for the defendant appellant no. 3, submitted that although it is a fact that the sole plaintiff respondent has died, but it is not a fit case that this Court shall pass an order recording the abatement of the entire appeal. He cited the decision of the Hon'ble Supreme Court in the case of Govt. of Andhra Pradesh Vs. Pratap Karan, reported in AIR 2016 SC 1717 . 6. I have considered the facts of the present case as also the submission made by both Mr. Roy and Mr. Mukherjee, learned counsel appearing for the respective parties. Admittedly the suit filed by the plaintiff respondent, since deceased, was a suit for partition. Both the learned Courts below have passed a preliminary decree in favour of the plaintiff respondent, since deceased, declaring her 1/5th share in the suit property. It is the preliminary decree passed by the learned Courts below in the partition suit, which are the subject matters of challenge in the second appeal. The provisions of abatement of a suit or an appeal are contained in sub-rule (3) and sub-rule (4) of Order XXII read with sub-rule (11) of Order XXII of the Code of Civil Procedure, 1908 (hereinafter called as “the Code”). However, it is well settled principle that once a preliminary decree is passed in a partition suit, the provisions contained in either Rule 3 or Rule 4 of Order XXII of the Code does not apply to any appeal. 7. Once a preliminary decree is passed in a partition suit, it cannot be said that the “right to sue” either under Rule 3 or Rule 4 of Order XXII exists in favour of the plaintiff or against the defendant in the partition suit. They acquire rights on the basis of the preliminary decree or incur liability fixed by the preliminary decree unless and until the decree is varied or set aside. They acquire rights on the basis of the preliminary decree or incur liability fixed by the preliminary decree unless and until the decree is varied or set aside. In the case of death of the plaintiff or the defendant after passing of the preliminary decree in a partition suit, the relevant provisions are those contained in sub-rule (1) of Rule 10 of Order XXII of the Code, which reads as follows: “In other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the Court, be continued by or against the person to or upon whom such interest has come or devolved.” 8. According to the language of sub-rule (1) of Rule 10 of Order XXII of the Code, the cases where the death occurs after any preliminary decree must come within that rule. The same principle shall also apply in case of death of one of the parties in an appeal against the preliminary decree as by reason of the provisions contained in Order XXII Rule 11 of the Code the words “right to appeal” shall have to be substituted for the words “right to sue” occurring in Rules 3 and 4 of Order XXII. The authority for this view can be found in the Division Bench decision of this Court in the cases of Bhusan Chandra Mondal Vs. Chabimoni Dasi reported in AIR 1948 Cal 363. Even in the case of Mahmud Mian Vs. Samsuddin Mian reported in (2005) 11 SCC 582 the Supreme Court held that an appeal arising out of a partition suit, shall not abate in its entirety on the ground of failure to substitute the legal representatives of one deceased party to the appeal. Thus, none of the above decisions of the Supreme Court on behalf of either of the parties to appeal has any bearing in the present case. 9. For all the forgoing reasons, the applicants, being the heirs and legal representatives of the deceased sole respondent are impleaded as the respondents in the appeal. 10. The Department is directed to carry out the necessary amendment in the cause title of the Memorandum of Appeal by recording the death of the sole respondent and by substituting the applicants in this application as the respondents. 10. The Department is directed to carry out the necessary amendment in the cause title of the Memorandum of Appeal by recording the death of the sole respondent and by substituting the applicants in this application as the respondents. Since the applicants already represented by their Advocates, service of the notice of appeal on the applicants, being the substituted respondents is dispensed with. With the above directions CAN 600 of 2016 stands disposed of. However, there shall be no order as to costs. 11. Urgent certified copy of this judgment, if applied for, be supplied to the parties subject to the compliance with all requisite formalities. Later 12. After passing of the judgment Mr. Roy, appearing for the applicants submitted that the appellants have done nothing for disposal of the appeal. Mr. Mukherjee appearing for the appellant no. 3 submitted that the appellant no. 3 is ready to deposit the Special Messenger's cost to bring the Lower Courts' records. 13. Accordingly, let the appellant no. 3 deposit the special messenger cost for bringing the lower Courts' records within June 30, 2016. If the appellant no. 3 deposits the Special Messenger's cost, the Department shall bring the lower Court's records by Special Messenger. 14. After arrival of lower Courts' records, the office is further directed to examine the lower Courts' records and, if found complete, issue notice of arrival of lower Courts' records on the learned advocate for the appellants. 15. The appellants are directed to prepare and file requisite number of informal paper books, printed, typewritten or cyclostyled, as the case may be, within two weeks from the date of service of notice of arrival of lower Courts' records on the learned advocate for the appellants. 16. Liberty to mention the appeal as and when the appeal becomes ready for hearing before the appropriate bench having determination, however, subject to the convenience of the Court. 17. If the appellant no. 3 does not deposit the Special Messenger's cost within June 30, 2016 the Department shall place the matter before this Court.