JUDGMENT : 1. This writ petition is under Article 227 of the Constitution of India whereby and where under the order dated 07.07.2018 in Civil Appeal No.27 of 2009 by District Judge-I, Giridih has been assailed whereby and where under the suit has been said to be abated against one Khalijan Khatoon who has died on 05.07.2015 and thereafter a petition filed by the appellant No.1(b) and 1(c) namely, Majlum Ansari and Lukman Ansari respectively but the affidavit was shown by one Ulfat Mian who is the appellant No.2 in the appeal praying therein for expunging the name of Khalijan Khatoon since she has died on 05.07.2015 which has been rejected by the impugned order against which the present writ petition has been filed. 2. Learned counsel appearing for the petitioner has submitted that the trial Court has committed gross error in passing the impugned order, it is for the reason that when the appellant No.1(a) has died in course of pendency of the appeal, her name ought to have been expunged and for that an application has been made without appreciating the provision as contained under Order XXII Rule 1. Further ground has been taken that the appellant No.1(b) and 1(c) are contesting the suit and as such the name of appellant No.1(a) is required to be expunged. 3. After having heard and going across the pleadings made in the writ petition as also the reason recorded in the impugned order, it is evident there from that a suit for declaration of right and title over the property in question has been filed being Title Suit No.196 of 1996 against the defendants for adjudication that the plaintiff's raiyati kayami subsisting title over the land be declared and possession of plaintiffs over the land be confirmed, the title suit has been dismissed on an application filed under Order VII Rule 11 of the Code of Civil Procedure against which the appeal has been filed being Title Appeal No.27 of 2009 and in course of the pendency of the aforesaid appeal, the appellant No.1 has died. 4. 4. On due application filed by the party and by virtue of order passed on 20.11.2010 thereon, the legal heirs of appellant No.1-Late Hanif Mian those are (i) Khalijan Khatoon W/o Late Hanif Mian, (ii) Majlum Ansari and (iii) Lukman Ansari, both sons of Late Hanif Mian were added in place of the deceased appellant No.1. 5. The appellant No.1(a) namely Khalijan Khatoon has died on 05.07.2015 and therefore, the appellant No.1(b) and 1(c) have filed an application for expunging the name of the appellant No.1(a) keeping the right to sue survives since they are already party to the suit, the same has not been objected by the plaintiff but the same has been dismissed. 6. Before entering into the legality and proprietory of the order, it needs to refer the petition filed by the petitioner upon which the impugned order has been passed, which has been kept at Annexure-3, the content of the said petition is being referred hereunder as:- “In the Court of District Judge-I at Giridih T.A. No.27 of 2009 Khatizan Khatoon and other.......appellants -Versus- Kudusia Khanam and others.......Respondents. Humble petition filed on behalf of appellants No.1(b) and 1(c) Most respectfully sheweth: 1. That appellant no.1(a), Khatizan Khatoon widow of late Hanif Mian died on 05.07.2015 and her legal heirs come in record. It is, therefore, prayed that name of deceased appellant no.1(a) may kindly\ be expunged from the pray of the appeal ground. And for this appellant shall every pray. AFFIDAVIT I, Ulfat Mian, son of late Bulaki Mian, resident of village-Chino, P.S. Dumri, District-Giridih, aged about 69 years, do hereby solemnly affirm and declare as follows:- 1. That I am one of the Plaintiffs/appellants in the suit. 2. That statements made above Petition have been read over and explained to me in Hindi which are found correct. Verification I, Ulfat Mian, do hereby declare and affirm that statements made above are true to the best of my knowledge, information and belief. Verified at Giridih dt. 25.05.2018. Filed on behalf of above appellants no.1.(b) and 1.(c), Giridih dt. 25.05.2018.” It is evident from the aforesaid petition that without invoking the jurisdiction of the Court, the said application has been filed praying therein for expunging the name of appellant no.1(a) from the array of the appeal. 7. Verified at Giridih dt. 25.05.2018. Filed on behalf of above appellants no.1.(b) and 1.(c), Giridih dt. 25.05.2018.” It is evident from the aforesaid petition that without invoking the jurisdiction of the Court, the said application has been filed praying therein for expunging the name of appellant no.1(a) from the array of the appeal. 7. Learned counsel for the petitioner has failed to draw the attention of this Court towards any provision of the Code of Civil Procedure which contains a provision for expunging the name of a party from the arrays of the list of the party, save and except, the provision as contained in Order XXII Rule 1 & 2. This Court has gone across the provision of Order XXII Rule 1 & 2 and has found that the provision of Rule 1 stipulates about the right to sue survives in case of death of a party which is being referred hereunder as:- “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.” Rule 2 of Order XXII contains a provision of procedure where one of several plaintiffs or defendants dies and right to sue survives, the said provision is also referred hereunder for ready reference as :- “2.Procedure where one of several plaintiffs or defendants dies and right to sue survives.––Where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants.” It is evident from the provision of Order XXII Rule 1 that in case of death of a plaintiff or defendant shall not cause the suit to abate if the right to sue survives, admittedly, this is not a case of the petitioner since the petitioner is already party to the suit and hence, the provision of Order XXII Rule 1 is not applicable in the facts and circumstances of the case. So far as the provision of Order XXII Rule 2 is concerned, the said provision provide procedure where there are more plaintiffs or defendants than one, and any of them dies, and where the right to sue survives to the surviving plaintiff or plaintiffs alone, or against the surviving defendant or defendants alone, the Court shall cause an entry to that effect to be made on the record, and the suit shall proceed at the instance of the surviving plaintiff or plaintiffs, or against the surviving defendant or defendants, meaning thereby, in case of the death of the plaintiffs or defendants the surviving legal heirs will have right to sue the proceeding and the Court is to make entry to that effect on the record. 8. Admittedly herein, as has been stated by the petitioner in the writ petition that after death of Hanif Mian, the petition has been filed for addition of appellant No.1(a) namely, Khalijan Khatoon, 1(b) namely, Majlum Ansari and 1(c) namely, Lukman Ansari which was by virtue of order dated 20th November, 2018 and after the impleadment, the petition has been filed for expunging the name of Khalijan Khatoon, the appellant No.1(a) which does suggest that the Court after taking into consideration the provision of Order XXII Rule 2 as also the application for impleadment of party by considering that the right to sue survives so far as the surviving legal heirs of the deceased defendant No.1 namely, Hanif Mian and as such the petitioner cannot argue that his case is coming under the fold of the aforesaid provision. 9. The Trial Court after taking into consideration the fact that the substitution application which ought to have been filed within the period of 90 days, has not been filed, therefore, by putting reliance upon the principle of abatement when after the expiry of period of 90 days, the case cannot be abated if the same has not been filed then where is the question of expunging the party who has died in course of pendency of the suit of the original appeal, and therefore, the petition filed by the petitioner has been rejected. 10. 10. According to the considered view of this Court that when the procedure has been laid down under the Code of Civil Procedure the petition is to be filed for the specific relief invoking the jurisdiction of the concerned Court but as has been transpired by this Court that the petition upon which the impugned order has been filed which is without any provision of law, and furthermore the petitioner has also not pointed out under which provision the order of expunging of party for the party possession can be passed. 11. It is further important to refer that the petitioners who are defendants cannot be allowed to file an application for expunging or deletion of name of defendants rather it is upon the plaintiff to file such application and if no such application is being filed by the plaintiff it is he/they who will suffer. Further, the petition for expunging has been filed by the defendant Nos.1(b) and 1(c) and sworn by the defendant No.2 which is also not permissible. 12. This Court is of the view that since the petitioner has already brought on record to sue the proceeding, therefore, he is not in any way going to be prejudiced, therefore, this Court is not inclined to interfere with the order impugned passed by the trial Court by exercising the power conferred under Article 227 of the Constitution of India since the provision of Article 227 of the Constitution of India is to look into the error apparent on the face of record but the same can only be appreciated if the party will invoke the jurisdiction of the Court invoking the proper jurisdiction which having not been done, therefore, this Court is not inclined to interfere with the order impugned. 13. In view thereof, the writ petition fails and is dismissed.